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]i.^.    "^AA-^W-  o^JU^-^^-c^^^  -  GJj^-vve^-va-^  d^r-'^.-C  &-' 


DIGEST  OF  OPINIONS 


OF  THE 


JUDGE  ADVOCATE  GENERAL 
OF  THE  ARMY 


COMPRISING  BULLETINS,  WAR  DEPARTMENT,  1917 

Nos.   26,  34,  42,  49,  54,  67,  72,  and  75, 
TOGETHER  WITH 

DIGESTS  OF  CERTAIN  OTHER  OPINIONS 

PUBLISHED  IN 

OPINIONS  OF  JUDGE  ADVOCATE  GENERAL,  VOL.  1,  1917. 
APRIL  1,  1917,  TO  DECEMBER  31,  1917 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 

1920 


^u^  ^. 


GIFT 

War  Department 

Document  No.  976 

Office  of  The  Adjutant  General 


WAR  DEPARTMENT, 

Washington,  March  i,  1920. 

The  following  bulletins  of  the  War  Department,  1917,  NOs.  26,  34, 
42,  49,  54,  67,  72,  and  75,  together  with  digests  of  certain  other  pub- 
lished opinions,  are  republished  for  the  information  of  the  service 
in  general. 

[016.2,  A.  G.  O.] 
By  order  of  the  Secretary  or  War  : 

PEYTON  C.  MARCH, 

General^  Chief  of  Staff, 
Official,  : 

P.  C.  HARRIS, 

The  Adjutant  General. 


416222 


TABLE  OF  CONTENTS. 


Bulletin  26,  W.  D.,  1917 5 

Bulletin  34,  W.  D.,  1917 ._.  15 

Bulletin  42,  W.  D.,  1917 29 

Bulletin  49,  W.  D.,  1917 37 

Bulletin  54,  W.  D.,  1917 45 

Bulletin  67,  W.  D.,  1917 53 

Bulletin  72,  W.  D.,  1917 ,  77 

Bulletin  75,  W.  D.,  1917 98 

Other  miscellaneous  opinions 112 

Index . 133 

NOTE. 

Numbers  and  letters  appearing  in  captions  refer  to  sections  in  Dig.  Ops. 
J.  A.  G.  1912. 
4 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE 
GENERAL  OF  THE  ARMY. 


BULLETIN  26. 

OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

AVIATION  PAY:   Officers  on  balloon  duty. 

Upon  the  question  raised  as  to  whether  or  not  officers  required  to 
make  regular  and  frequent  aerial  flights  in  balloons  are  entitled  to 
extra  pay  authorized  by  section  13  of  the  national  defense  act  of 
June  3,  1916 : 

Held^  that  such  officers  are  entitled  to  the  extra  pay  authorized  by 
the  statute;  that  the  act  of  July  18, 1914  (38  Stat.  514),  creating  the 
aviation  section  and  prescribing  the  duties  of  the  same  expressly 
charged  that  section  with  the  duty  "  of  operating  or  supervising  the 
operation  of  all  military  aircraft,  including  halloons  and  aeroplanes;'*'' 
that  in  authorizing  the  increase  of  pay  to  officers  on  duty  requiring 
them  "  to  participate  regularly  and  frequently  in  aerial  -fiights^''  the 
act  made  no  distinction  as  to  the  kind  of  aerial  craft;  and  that 
the  national  defense  act,  while  dealing  with  the  organization,  com- 
pensation, etc.,  of  the  aviation  section,  leaves  in  force  the  provision 
of  the  act  of  July  18, 1914,  prescribing  the  duties  of  that  section,  and, 
like  the  act  of  July  18, 1914,  makes  no  distinction  with  respect  to  the 
character  of  aerial  craft;  but  the  law  requires  that  the  officer,  while 
receiving  this  pay,  shall  be  on  duty  requiring  him  to  participate 
regularly  and  frequently  in  aerial  flights,  having  regard  to  the  nature 
of  the  craft  in  which  such  flights  are  taken ;  and  this  must  be  the  real 
duty  of  the  officer  under  his  assignment. 

Ops.  J.  A.  G.  72-181,  Apr.  3,  1917. 

DESEBTEBS :   National  Guard  in  Federal  service. 

The  question  was  presented  whether  deserters  from  the  National 
Guard  in  Federal  service  continue  liable  to  arrest  after  muster  out 
of  Federal  service  of  all  the  National  Guard;  and  if  so,  whether 
rewards  are  payable  for  such  arrests. 

Held^  that  the  crime  of  desertion  being  complete  upon  breach  of 
the  obligation  to  serve,  the  continued  amenability  is  in  no  way  re- 
lated with  continuance  in  the  service  of  the  organization  from  which 
the  deserter  absented  himself,  and  that  therefore  deserters  from  the 
National  Guard  in  Federal  service  continue  amenable  to  arrest  until 
discharged  or  until  the  running  of  the  statute  of  limitations,  and 
such  delinquents  are  deserters  from  the  Army  within  the  meaning 
of  the  statutes  authorizing  payment  of  rewards. 

Ops.  J.  A.  G.  26-200,  Mar.  26,  1917. 

5 


6  DIGEST   OF  OPIXIOXS    TL^DGE  ADVOCATE  GENERAL   OF   ARMY. 

ENLISTEI?  MEN":    Absence  witliaat  leave  after  revocation  of  furlough. 

A  lettef  ie^'ofkmg  tlie  furlough  of  an  enlisted  man  was  sent  to  the 
place  designated  by  him  as  his  address  but  failed  of  delivery  because 
he  had  removed  therefrom  without  notifying  his  proper  superiors. 
Later  a  friend  notified  him  that  he  had  been  dropped  as  a  deserter. 
He  paid  no  attention  to  this,  but  reported  back  at  the  expiration  of 
his  furlough. 

HeJd^  that  having  been  put  on  inquiry  and  having  omitted  to  in- 
quire he  was  chargeable  with  all  the  facts  which  by  proper  inquiry 
he  might  have  ascertained,  and  that  he  should  therefore  be  regarded 
as  having  been  absent  without  leave  from  the  date  he  was  apprised 
that  he  had  been  dropped  as  a  deserter  until  his  return  to  military 
control. 

Ops.  J.  A.  G.  2-135,  Apr.  4,  1917. 

FIELD  OFFICERS:  Detached  service. 

A  field  officer  of  Infantry,  who  served  as  judge  advocate  of  the 
punitive  expedition,  inquired  whether  such  service  should  be  re- 
garded as  detached  service  or  duty  with  an  organization  within  the 
meaning  of  existing  detached  service  legislation  relating  to  field 
officers. 

Held^  that  as  at  least  two  companies  of  Infantry  entered  into  the 
composition  of  the  command  with  which  this  officer  was  serving  he 
was,  under  a  recent  decision  of  the  Secretary  of  War  overruling  the 
opinion  of  this  office  of  January  3,  1917,  entitled  to  have  the  period 
in  question  credited  as  service  with  an  organization. 

Ops.  J.  A.  G.  6-124.3,  Apr.  5,  1917. 

GOVERNMENT  PROPERTY:   Unlawful  purchase  of. 

A  report  was  submitted  with  reference  to  the  failure  of  the  Federal 
grand  jury,  Del  Rio,  Tex.,  to  find  indictments  in  the  case  of — 

{a)  A  saloon  keeper  wearing  an  olive-drab  sweater  and  an  olive- 
drab  shirt,  both  Government  issue,  and 

(&)  A  ranchman  having  in  his  possession  one  Colt's  automatic 
pistol,  caliber  .45,  Government  issue,  with  indications  thereon  of  an 
attempt  to  obliterate  the  Government  marks. 

Section  35  of  the  Penal  Code  prescribes  a  penalty  for  knowingly 
purchasing  or  receiving  in  pledge  from  any  soldier,  etc.,  military 
property,  including  arms  and  clothing;  and  section  1242,  Revised 
Statutes,  forbids  the  sale,  etc.,  of  such  property  and  prescribes  that 
"  the  2)ossession  of  any  such  property  by  any  person  not  a  soldier  or 
officer  of  the  United  States  shall  be  prima  facie  evidence  of  such 
sale,"  etc. 

Ileld^  that  inasmuch  as  the  articles  bore  plain  indications  that  they 
were  articles  of  Government  issue,  the  sale  of  which  is  forbidden  by 
law,  the  possession  of  them,  in  connection  with  evidence  showing 
their  issue  and  that  they  were  missing,  should  be  regarded,  in  view 
of  the  provision  of  section  1242,  Revised  Statutes,  as  prima  facia 
evidence  of  the  unlawful  sale,  sufficient  to  warrant  an  indictment. 

Held  further^  that  as,  under  the  law,  a  finder  of  goods  who  appro- 
priates them  to  his  own  use  where  there  is  a  reasonable  clue  to  owner- 
sliip  thereof  is  guilty  of  larceny  (25  Cyc.  35-38) ;  and  as  the  articles 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OP  ABMY.  7 

in  these  cases  bore  plain  indications  that  they  were  articles  of  Gov- 
ernment issue,  the  possession  of  the  same  under  circumstances  show- 
ing an  intent  to  appropriate  them  to  the  use  of  these  parties  should 
be  regarded  as  prima  facie  evidence,  sufficient  to  warrant  the  finding 
of  indictments  for  larceny  thereof. 

Advised,  therefore,  that  a  competent  officer  be  instructed  to  confer 
with  the  United  States  attorney  with  a  view  to  the  presentation  of 
such  evidence  as  will  be  required  to  secure  indictments  by  the  grand 
jury  in  such  cases. 

Ops.  J.  A.  G.  80-030,  Apr.  14,  1917. 

LEASE  OF  GOVERNMENT  PROPERTY :   Revocation  of. 

An  electric  company  holding  a  lease  of  a  Government  electric 
power  plant  applied  for  a  revocation  of  its  lease,  to  take  effect  seven 
months  prior  to  its  expiration,  for  the  reason  that  it  had  disposed 
of  it«  plant  to  another  company,  and  had  therefore  discontinued  its 
use  of  the  Goveriiment  plant.  The  lease  contained  a  provision  for 
its  annulment  or  revocation  at  any  time  by  the  Secretary  of  War. 

It  appeared  that  no  advantage  would  come  to  the  United 
Stat.es  through  the  revocation  of  the  lease,  as  no  use  would 
be  made  of  the  property,  and  also  that  there  was  no  objection  to 
its  revocation,  other  than  the  loss  of  revenue  to  the  Government 
by  reason  thereof. 

Ueld^  that  the  provision  in  the  lease  for  its  revocation  at  any  time 
by  the  Secretary  of  War  was  intended  to  be  exercised  in  the  in- 
terests of  the  Government,  and  not  for  the  purpose  of  relieving 
the  lessee  from  its  obligation  under  its  contract,  and  that  the  Secre- 
tary of  War  was  without  authority  to  grant  the  revocation  applied 
for,  as  such  action  on  his  part  would  amount  to  a  surrender  of 
propertv  rights  of  the  Government. 

Ops.  J.  A.  G.  80-722.4,  Apr.  14, 1917. 

LINE  OF  DUTY:   Death  occurring-  in  duty  status. 

An  officer  on  duty  status  was  killed  while  engaged  in  normal  and 
proper  recreation.  The  Pension  Bureau  refused  his  widow  a  pen- 
sion. Query :  Did  the  death  occur  in  line  of  duty  within  the  adminis- 
trative determination  of  the  War  Department?  The  Pension  Bureau 
interprets  the  words  "death  due  to  military  service  in  line  of  duty." 
as  they  are  used  in  the  pension  law,  as  admitting  only  deaths  where 
an  act  of  military  duty  is  related  to  the  death  as  an  effective  cause. 
Congress  itself  has  interpreted  the  words  to  refer  only  to  the  status 
of  the  deceased  at  time  of  death.  The  War  Department  adopts 
the  latter  construction  and  has  consistently  construed  casualties  as 
due  to  military  service  in  line  of  duty  wherever  the  person  suffering 
them  was  on  a  duty  status  under  competent  orders  and  engaged  in 
occupation  or  recreation  proper  and  normal  to  persons  in  that  status. 
Tested  by  this  rule,  held,  that  this  casualty  was  due  to  military 
service  in  line  of  duty.  It  is  unforunate  that  the  construction  of 
this  law  is  not  consistent  in  both  departments,  but,  after  careful 
consideration,  this  office  can  concede  nothing  of  its  own  view  of  the 
meaning  of  these  words. 

Ops.  J.  A.  G.  42-520,  Mar.  24, 1917. 


«  DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  AEMY. 

NATIONAL  GUARD  RESERVE:   Discharge  from  Reserve  to  permit  en- 
listment in  National  Guard. 

It  being  proposed  to  discharge  National  Guard  reservists  with  a 
view  to  their  immediate  reenlistment  in  regiments  of  the  National 
Guard  :  Held^  that  without  considering  how  far  the  President 
legally  can  go  in  authorizing  wholesale  discharges  from  the  National 
Guard  Reserve,  it  is  enough  to  say  that  the  national  defense  act  con- 
templates a  well-defined  function  for  the  National  Guard  Reserve 
and  its  continuance  for  the  performance  of  that  function;  that  it 
would  defeat  the  purpose  of  the  law  to  authorize  discharges  on  the 
considerations  mentioned;  and  that  in  the  absence  of  any  showing 
of  convenience  to  the  Government  such  discharges  ought  not  to  be 
authorized. 

Ops.  J.  A.  G.  58-052,  Apr.  3, 1917. 

NATIONAL  GUARD  RESERVE:   Transfer  to,  of  administrative  staffs. 

The  Secretary  of  War  having  approved  the  opinion  of  this  office 
that  certain  officers  of  the  administrative  staffs  of  the  several  States 
did  not  constitute  a  part  of  the  National  Guard  as  organized  under 
the  national  defense  act,  a  further  opinion  was  desired  on  the  ques- 
tion whether  such  officers  could  be  transferred  to  the  National  Guard 
Reserve  under  section  77  of  the  national  defense  act  of  June  3,  1916, 
which  provides  that — 

"  Officers  of  said  guard  rendered  surplus  by  the  disbandment  of 
their  organizations  shall  be  placed  in  the  National  Guard  Reserve." 

Held^  that  this  section  has  no  application  to  officers  appointed  for 
State  administrative  purposes  and  who  have  not  been  appointed  to 
offices  having  any  place  in  the  organization  of  the  units  actually 
maintained  by  the  respective  States. 

Held  further^  that  the  authority  conferred  by  section  78  of  the 
national  defense  act  for  the  organization  of  the  National  Guaid  Re- 
serve "  in  each  State,"  etc.,  to  "  consist  of  such  organizations,  officers 
and  enlisted  men,  as  the  President  may  prescribe,"  contemplates  a 
reserve  to  the  active  organizations  maintained  in  the  State,  and  that 
it  can  therefore  have  no  officers  other  than  those  of  the  character  pro- 
vived  for  the  active  organizations  maintained  in  the  particular  State. 

Ops.  J.  A.  G.  58-213,  Apr.  12, 1917. 

PHILIPPINE  ISLANDS:   Acts  of  Congress  relating  to  rifle  clubs  not  ap- 
plicable to. 

In  connection  with  steps  taken  to  organize  a  civilian  rifle  club  at 
Manila,  P.  I.,  the  question  was  presented  whether  the  provisions  of 
the  acts  of  Congress  of  March  3,  1905  (33  Stat.  986),  and  April  24, 
1914  (38  Stat.  370),  relating  to  the  sale  and  issue  of  rifles,  ammuni- 
tion, etc.,  to  rifle  clubs  were  applicable  to  the  Philippine  Islands. 

Held^  that  neither  one  of  the  acts  mentioned  is  applicable  to  the 
Philippine  Islands,  it  being  expressly  provided  in  the  Philippine 
organic  act  that  section  1891  of  the  Revised  Statutes,  which  declares 
that— 

"The  Constitution  and  laws  of  the  United  States  which  are  not 
locally  inapplicable  shall  have  the  same  force  and  effect  within  all 
the  organized  Territories  and  in  every  Territory  hereafter  organized 
as  elsewhere  within  the  United  States  " — 
shall  not  apply  to  the  Philippine  Islands. 
Ops.  J.  A.  G.  80-140,  Apr.  13, 1917. 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.  ^ 

PBOVISIONAL  SECOND  LIEUTENANTS:   Discharge  prior  to  expiration 
of  statutory  provisional  period. 

The  discharge  of  a  provisional  second  lieutenant  after  six  months' 
service  as  such  was  asked  on  the  ground  that  he  lacked  the  mentality 
requisite  for  an  officer  and  had  demonstrated  that  he  could  never 
reach  the  standard  that  should  be  required  of  an  officer:  thus  pre- 
senting the  question  whether  the  provisional  appointment  of  a  second 
lieutenant  might  be  terminated  on  account  of  failure  to  demonstrate 
suitability  and  fitness  for  permanent  appointment  prior  to  the  termi- 
nation of  the  two  years  mentioned  in  section  28  of  the  national- 
defense  act. 

Held^  that  the  word  "  provisional "  occurring  in  that.  ])ortion  of 
section  23  of  the  national  defense  act  reading: 

"  Hereafter  all  appointments  of  persons  other  than  graduates  of 
the  United  States  Military  Academy  to  the  grade  of  second  lieu- 
tenant in  the  Eegular  Army  shall  be  provisional  for  a  period  of  two 
years,  at  the  close  of  which  period  such  appointments  shall  be  made 
permanent  if  the  appointees  shall  have  demonstrated,  under  such 
regulations  as  the  President  may  prescribe,  their  suitability  and 
moral,  professional,  and  physical  fitness  for  such  permanent  appoint- 
ment ;  but  should  any  appointee  fail  so  to  demonstrate  his  suitability 
and  fitness,  his  appointment  shall  terminate  " — ■ 
relates  only  to  the  alternative  action  permitted  at  the  end  of  the  period 
designated  and  carries  no  authority  to  terminate  the  appointment 
within  that  period ;  that  the  terms  of  the  section  quoted  plainly  allow 
to  the  provisional  appointee  a  period  of  two  years  in  which  to  acquire 
and  demonstrate  suitability  and  fitness ;  and  that  during  that  perio<l 
the  provisional  appointee  may  be  removed  from  office  only  by  the 
same  means  by  which  a  permanent  officer  mav  be  removed. 

Ops.  J.  A.  G.  64-213.1,  Mar.  21, 1917. 

BEGTJLAR  ARMY  RESERVE:    Grade    of    first    class    private,    Engineer 
Corps. 

A  company  commander  of  Engineers  inquired  whether  he  was  cor- 
rect in  placing  on  the  rolls  as  privates  the  names  of  reservists  re- 
called to  the  colors  for  active  duty  and  assigned  to  his  company, 
when  such  reservists  had  been  furloughed  as  first  class  privates^  or 
if  he  should  have  carried  them  as  attached  privates^  first  class^  and 
assigned  them  to  the  first  vacancies  in  that  gi'ade.  His  doubt  was 
due  to  the  fact  that  section  11  of  the  national  defense  act  of  June 
3,  1916,  specifies  as  a  component  part  of  an  Engineer  company, 
first  class  privates  and  privates,  whereas  the  old  law  (sec.  11  of  the 
act  of  Feb.  2,  1901)  prescribed  first  class  privates  and  second  class 
privates. 

Held^  that  it  evidently  was  not  the  intention  of  Congress  by  the 
change  in  the  designation  of  the  two  grades  mentioned  to  abolish 
the  old  grades  and  create  new  ones,  since  the  pay  remains  the  same, 
and  section  28  of  the  national  defense  act,  which  declares  that 
"hereafter  the  monthly  pay  of  men  of  certain  grades  of  the  Army 
created  in  this  act  shall  be  as  follows,  namely,"  does  not  include  the 
grade  of  private,  first  class,  Engineer  Corps,  nor  private.  Engineer 
Corps,  and  that  therefore  the  reservists  referred  to  by  the  company 
commander  should  have  been  carried  on  the  rolls  as  privates,  first 
class.  Engineer  Corps,  and  paid  as  such,  in  accordance  with  the  pro- 


10        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL   OF  ARMY. 

visions  of  paragraph  86  of  the  Kegulations  for  the  Regular  Army 
Reserve,  1916. 

Ops.  J.  A.  G.  6-310,  Apr.  2,  1917. 

BEGULAR  ARMY  RESERVE:   Grade  of  wagoner  of  Cavalry. 

An  enlisted  man  who  was  furloughed  to  the  Regular  Army  Re- 
serve in  the  grade  of  wagoner  of  Cavalry  was,  upon  being  recalled 
to  the  colors  for  active  duty  by  the  President's  summons  of  July  18, 
1916,  taken  up  and  carried  on  the  rolls  as  private^  under  the  view 
that  the  grade  of  wagoner  of  Cavalry  was  abolished  by  the  national- 
defense  act  of  June  3,  1916. 

Held^  that  the  grade  of  wagoner  of  Cavalry  was  not  abolished  by 
the  national  defense  act,  but  was  preserved  in  the  supply  company 
created  for  each  regiment  of  Cavalry  as  provided  by  section  18  of 
that  act,  and  that  therefore  the  soldier  under  consideration  was  en- 
titled to  be  carried  on  the  rolls  in  the  grade  of  wagoner  of  Cavalry 
and  paid  as  such,  in  accordance  with  paragraph  86  of  the  Regulations 
for  the  Regular  Army  Reserve,  1916. 

Ops.  J.  A.  G.  6-310,  Mar.  29,  1917. 

TRAVEL  ALLOWANCES :   Mutual  transfer  of  officers. 

A  first  lieutenant,  unassigned,  was  attached  temporarily  to  a  regi- 
ment in  the  Canal  Zone  for  duty.  After  receiving  a  regular  assign- 
ment and  orders  to  join  his  regiment  in  the  States,  he  arranged  a 
mutual  transfer  with  an  officer  of  the  regiment  to  which  he  had 
been  temporarily  attached  in  the  Canal  Zone,  and  in  pursuance  with 
the  request  of  the  two  officers  orders  were  issued  announcing  the 
transfers,  and  it  was  directed  therein  that  "  each  officer  will  proceed 
to  join  his  regiment  to  which  transferred."  The  officer  who  was  thus 
required  to  join  his  regiment  in  the  States  protested  against  having 
to  make  the  change  at  his  own  expense  for  transportation,  under  the 
view  that  the  other  officer  would  have  been  entitled  to  travel  allow- 
ances and  that  as  he  merely  took  the  other  officer's  place  he  was  en- 
titled to  travel  allowances. 

Held^  that  the  department  could  not  change  the  fact  that  the 
transfer  of  this  officer  was  in  compliance  with  his  own  request  and 
for  his  own  convenience ;  that  it  was  proper,  if  not  essential,  to  state 
in  the  order  of  transfer  that  the  change  was  the  result  of  a  transfer 
requested  by  the  two  officers,  and  this  being  so,  it  would  clearly  have 
been  contrary  to  the  specific  provisions  of  Army  Regulations  1297 
to  specify  in  the  order  that  the  travel  was  necessary  in  the  military 
service,  and  that,  therefore,  under  the  regulations  the  officer  was 
not  legally  entitled  to  travel  allowances. 

Ops.  J.  A.  G.  94-210,  Apr.  4,  1917. 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

APPROPRIATIONS:   Reimbursement  for  services  rendered  by  one  execu- 
tive department  for  another. 

In  an  emergency  a  dredge  of  the  Engineer  Department  of  the 
Army  rendered  service  in  rescuing  a  barge  of  the  Public  Health  Serv- 
ice of  the  Treasury  Department,  which  had  been  sunk  in  a  harbor 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.         11 

duKin^  a  gale  and  which  lay  in  a  position  endangering  the  station 
buildings.  The  Engineer  Department  submitted  to  the  Treasury  De- 
partment a  voucher  for  reimbursement  of  the  expenses  incurred, 
including  pay  and  subsistence  of  dredge  crew  for  two  days,  and  for 
coal,  oil,  depreciation  of  dredge,  etc.,  amounting  to  $179.96. 

Held^  that  while  in  general  where  the  agencies  of  one  executive 
department  of  the  Government  renders  service  to  another  such  de- 
partment and  for  its  particular  benefit,  reimbursement  to  the  depart- 
ment rendering  the  service  should  be  made,  yet  where  such  services 
are  performed  in  an  emergency  for  the  protection  of  Government 
property  and  hence  for  the  common  good  of  the  Government  rather 
than  for  the  benefit  of  the  particular  department  aided,  no  such 
reimbursement  should  be  made. 

Comp.  Treas.  Mar.  3,  1917. 

COAST  ARTILLERY  BANDS:  Grade  of  mess  sergeant. 

The  following  questions  were  presented  for  decision: 

(a)  May  band  sergeants  of  Coast  Artillery  bands  be  detailed  as 
mess  sergeants? 

(h)  If  band  sergeants  may  be  so  detailed,  are  they  entitled  to 
additional  pay  at  the  rate  of  $6  per  month? 

(c)  Or,  is  it  the  intention  of  the  law  that  the  263  mess  sergeants 
authorized  in  the  act  of  June  3,  1916,  shall  suffice  for  all  organiza- 
tions of  the  Coast  Artillery  Corps? 

Section  20  of  the  national  defense  act  of  June  3,  1916,  provides 
that— 

"  The  Coast  Artillery  Corps  shall  consist  of  *  *  * ;  263  mess 
sergeants;  *  *  .  *;  and  18  bands,  organized  as  hereinbefore  pro- 
vided for  the  Engineer  band.     *     *     *  55 

The  plan  of  organization  of  the  Engineer  units  is  provided  for  in 
section  11  of  the  same  act.  The  grade  of  mess  sergeant  is  included  in 
each  company,  but  not  specified  for  the  band  organization. 

Held^  that  the  organization  of  each  of  the  18  bands  of  the  Coast 
Artillery  Corps  being  legally  the  same  as  that  of  the  Engineer  band, 
the  grade  of  sergeant  is  not  included,  since  this  grade  is  not  included  in 
the  Engineer  Corps  as  prescribed  by  statute.  It  is  the  intention  of 
that  law  that  the  263  mess  sergeants  authorized  in  section  20  of  the 
act  of  June  3,  1916,  shall  suffice  for  all  organizations  of  the  Coast 
Artillerv  Corps,  and  band  sergeants  of  said  ( orps  may  not  be  detailed 
as  mess  sergeants. 

Comp.  Treas.  Apr.  10,  1917. 

ENLISTED  MEN :   Aid  to  dependent  families. 

The  following  questions  were  submitted  for  decision : 
(«)  Are  the  families  of  enlisted  men  belonging  to  National  Guard 
organizations  which  were  in  the  service  of  the  United  States  under 
the  President's  call  of  June  18.  1916,  and  which  were  mustered  out  of 
said  service,  entitled  to  the  benefits  of  the  act  of  August  29.  1916,  as 
amended,  while  in  the  service  of  the  United  States  under  the  Presi- 
dent's call  of  Marcli  25,  1917? 

{h)  Are  the  families  of  enlisted  men  belonging  to  organizations 
brought  into  the  Federal  service  under  the  President's  call  of  June 
18,  1916,  still  entitled  to  the  benefits  of  the  act  of  August  29,  1916, 
as  amended,  where  such  organizations  remain  continuously  in  service 


12        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL   OF  ARMY. 

under  said  call  pursuant  to  the  orders  suspending  the  original  or- 
ders for  their  muster  out? 

(c)  Are  the  families  of  enlisted  men  of  the  Regular  Army  entitled 
to  the  benefits  of  the  act  of  August  29,  1916,  as  amended,  so  long  as 
there  remain  in  the  service  of  the  United  States  any  organization  of 
the  National  Guard  under  the  call  of  June  18,  1916,  or  do  the  benefits 
of  the  statutes  extend  to  include  such  period  as  National  Guard  or- 
ganizations may  be  in  the  service  of  the  United  States  under  the  call 
of  March  25,  1917? 

Held,  that  the  legislation  for  the  relief  of  dependent  families  of  sol- 
diers (act  ofAug.  29, 1916,  as  amended  by  the  act  of  Sept.  8,  1917,  39 
Stat.  649,  801 )  was  enacted  with  reference  to  enlisted  men  belonging 
to  National  Guard  organizations  brought  into  the  service  under  calls 
made  by  the  President  prior  to  such  legislation,  and  to  enlisted  men 
of  the  Regular  Army  in  active  service  during  the  continuance  of  the 
National  Guard  service  under  such  calls,  and  to  none  others ;  and  that 
in  order  that  those  organizations  responding  to  the  call  of  March 
25,  1917,  and  those  retained  in  service,  as  specified  in  that  call,  may 
be  on  an  equal  footing,  so  far  as  family  benefits  are  concerned,  it  must 
be  held  that  they  are  all  in  the  service  under  the  call  of  March  25, 
1917,  those  organizations  which  had  not  been  discharged  but  were  re- 
tained in  the  service  having  ceased  to  be  in  the  service  under  the  call 
of  June  18, 1916,  from  and  after  March  25, 1917.  All  three  questions 
should,  therefore,  be  answered  in  the  negative. 

The  present  crisis  in  national  affairs  has  brought  on  new  conditions, 
and  Congress  being  in  session  at  this  time  if  it  desires  to  continue  the 
payment  for  the  support  of  the  families  of  enlisted  men  of  National 
Guard  organizations  brought  into  the  service  or  continued  in  the  serv- 
ice under  the  President's  call  of  March  25,  1917,  and  of  certain 
enlisted  men  of  the  Regular  Army,  legislation  expressive  of  such 
desire  should  be  enacted  at  this  time.  There  will  thus  be  an  oppor- 
tunity to  place  all  on  an  equal  footing. 

Comp.  Treas.  Apr.  9,  1917. 

PURCHASE  OF  SUPPLIES:   Envelopes  for  headquarters  of  military  de- 
partments. 

The  acts  of  January  12,  1895  (28  Stat.  624),  and  June  26,  1906  (34 
Stat.  476),  are  to  the  general  effect  that  envelopes  for  the  use  of  the 
executive  departments  of  the  Government  and  all  branches  of  the 
service  coming  under  their  jurisdiction  are  to  be  purchased  exclu- 
sively by  the  Postmaster  General  upon  requisitions  of  such  executive 
departments,  etc.  In  a  decision  of  Julv  22, 1913  (20  Comp.  Dec,  34), 
the  Comptroller  of  the  Treasury  held' that  the  act  of  June  26,  1906, 
precluded  the  purchase  of  envelopes  from  the  appropriation  "  Con- 
tingencies, headquarters  of  military  departments,  etc.,"  otherwise 
than  as  authorized  b}^  that  act,  and  that  the  discretion  conferred  upon 
division  or  department  commanders  in  that  appropriation  with  re- 
spect to  expenditures  could  not  be  regarded  as  authorizing  a  purchase 
otherwise  prohibited  by  law.  Commencing  wnth  the  fiscal  year  1915, 
the  appropriation  "  Contingencies,  headquarters  of  military  depart- 
ments, etc.,"  named  stationery  among  the  objects  for  which  the  ap- 
propriation might  be  expended,  and  the  question  was  presented 
whether  the  inclusion  of  stationery  among  such  objects  operated  as 


DIGEST  OF  OPINIONS  JUDCJK   ADVOt^ATK  GENERAL  OF  ARMY.         13 

a  repeal  fro  tanto  of  the  prohibitory  statutes  respecting  the  officer 
authorized  to  purchase  envelopes. 

Held,  that  the  fact  that  stationery  was  named  in  the  appropriation 
anion^  the  objects  of  authorized  expenditure  thereunder  merely  in- 
creased specifically  the  number  of  heads  of  lawful  expenditures  and 
had  no  effect  whatever  on  the  manner  in  which  such  expenditures 
were  to  be  made,  and  that,  therefore,  expenditures  for  envelopes 
of  headquarters  of  military  departments,  etc.,  of  the  Army  are  still 
to  be  made  in  the  manner  indicated  by  the  acts  above  cited. 

Comp.  Treas.  Jan.  29,  1917. 

BEGULAR  ARMY  RESERVE:  Forfeiture  of  mobilization  and  active  re- 
serve pay  by  court-martial  sentence. 

In  the  case  of  an  enlisted  man  of  the  Regular  Army  Reserve 
called  to  the  colors  for  active  service  who  was  convicted  by  general 
<;ourt-martial  and  sentenced  to  be  dishonorably  discharged  "  and  to 
forfeit  all  pay  and  allowances  now  due  and  to  become  due  while 
under  confinement  under  this  sentence," 

Held,  that  the  sentence  operated  to  forfeit  not  only  the  unpaid 
pay  for  active  service  which  became  due  and  payable  monthly  and 
the  balance,  if  any,  due  the  soldier  on  accoimt  of  clothing  and  other 
allowances,  but  included  as  well  the  amounts  which  had  become  due 
the  soldier  upon  his  reporting  for  active  duty  in  response  to  the 
President's  summons,  known  as  mobilization  and  reservist's  pay, 
which  had  not  been  paid  him  at  the  time  of  his  conviction  and  sen- 
tence, this  view  being  in  consequence  with  the  decision  of  the  Supreme 
Court  in  the  Landers  case  (92  IJ.  S.  80),  in  which  it  was  held — 

"  The  bounty  which  the  petitioner  claimed  was  included  in  the 
allowances  forfeited.  Under  the  term  '  allowances '  everything  was 
embraced  which  could  be  recovered  from  the  Government  by  the 
soldier  in  consideration  of  his  enlistment  and  services,  except  the 
stipulated  monthly  compensation  designated  as  pay." 

In  the  instant  case  the  soldier  became  entitled  under  section  31  of 
the  act  of  June  3,  1916,  upon  reporting  for  duty  and  being  found 
physically  fit  for  service,  to  the  sum  of  $3.07  as  reservist's  pay,  being 
$2  per  month  for  period  from  June  3,  1916,  to  July  18,  1916,  and, 
under  the  provisions  of  section  32  of  the  same  act  he  became  entitled 
to  $15.30  as  mobilization  pay,  being  $3  per  month  for  the  entire 
period  of  his  furlough  from  February  16,  1916,  to  July  18,  1916, 
inclusive. 

Held,  that  so  much  of  paragraph  86  of  the  Regulations  for  the 
Regular  Army  Reserve,  puolished  August  15,  1916,  as  specifies  $5  per 
month  as  the  rate  of  mobilization  pay  up  to  June  2,  1916,  is  invalid. 

Comp.  Treas.  Apr.  20,  1917. 


DECISION  OF  THE  COMMISSIONEE  OF  PENSIONS. 

PIELD  CLERKS:   Right  to  draw  pension  while  serving  as  such. 

The  question  Avas  submitted  to  the  Commissioner  of  Pensions 
whether  the  acceptance  of  the  position  of  field  clerk  (act  of  Aug.  29, 
1916,  39  Stat.  625)  by  a  civil  service  clerk  receiving  a  pension  would 
operate  to  cut  oif  his  pension  in  view  of  th^  War  Department's  ruling 


14        DIGEST   OP  OPINIONS  JUDGE  ADVOCATE  GENERAL   OF  ARMY. 

that  field  clerks  are  part  of  the  Military  Establishment  and  not 
subject  to  the  civil  service  rules  and  regulations. 

Ueld^  that  since  the  appointment  of  such  clerks  is  vested  in  the 
Secretary  of  War,  they  must  be  deemed  as  officers,  and  whether  they 
be  designated  in  military  parlance  as  commissioned  officers  or  non- 
commissioned officers  is  immaterial  so  far  as  the  pension  laws  are 
concerned,  the  established  rule  being  that  one  who  serves  under  a 
commission  or  appointment  from  the  Secretary  of  War  is  a  person 
in  the  military  service  for  pensionable  purposes  {Stout  case,  19  P.  D., 
149)  ;  and  that,  therefore,  under  section  4724,  Revised  Statutes,  and 
the  act  of  March  3,  1891  (26  Stat.  1082),  no  pension  can  lawfully 
be  paid  to  a  person  holding  the  position  of  field  clerk  covering  the 
period  of  such  service.  Advised,  how^ever,  that  this  ruling  is  sub- 
ject to  approval  or  modification  of  the  Secretary  of  the  Interior 
upon  the  appeal  of  any  pensioner  from  the  action  of  the  Pension 
Bureau  in  dropping  his  name  from  the  pension  rolls  because  of  his 
appointment  and  service  as  a  field  clerk  under  the  act  of  August 
29,  1916. 

Commissioner  of  Pensions,'  Apr.  11,  1917. 


BULLETIN  34. 

OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

CLOTHING,  MILITIA:  Approval  of  survey. 

In  order  to  facilitate  action  on  the  property  account  of  militia 
authorities  of  Hawaii,  it  was  proposed  to  delegate  to  the  command- 
ing general,  Hawaiian  Department,  authority  to  act  for  the  Secre- 
tary of  War  on  reports  of  surve}^  for  the  Territory  of  Hawaii.  Sec- 
tion 87,  act  of  June  3,  1916,  provides  that — "  if  it  shall  appear  to  the 
Secretary  of  War  from  the  record  of  survey  that  the  property  was 
lost,  damaged,  or  destroyed  through  unavoidable  causes,  he  is  hereby 
authorized  to  relieve  the  State  or  Territory  or  the  District  of  Colum- 
bia from  further  accountability  therefor,"  but  that  if  damaged 
through  negligence,  the  money  value  of  the  property  is  to  be  charged 
to  the  State,  etc.,  and  "  to  be  paid  from  State,  Territory,  or  District 
funds,  or  any  funds  otlier  thxin  Federal^  Upon  the  question 
whether  the  proposed  authority  could  be  delegated, 

Held^  that  the  statute  confers  upon  the  Secretary  of  War  a  dis- 
cretionary or  judicial  authority,  not  a  ministerial  one,  and  that  within 
well-settled  rules  of  law  such  authority  can  not  be  delegated  as  pro- 
posed ;  and  that  the  action  should  be  limited,  therefore,  to  authoriz- 
ing the  examination  of  such  reports  by  the  department  commander, 
the  same  to  be  forwarded  to  the  War  Department  with  his  recom- 
mendation for  final  action  by  the  Secretary  of  War. 

Ops.  J.  A.  G.  58-314,  May  8,  1917. 

CONTRACT :   Correction  of  error  in  bid. 

Upon  the  question  raised  as  to  the  legality  of  accepting  the  bid  of 
the  lowest  bidder  for  certain  electric  installation  as  corrected  by 
letter  submitted  following  the  opening  of  bids,  it  appearing  that  the 
bid  as  originally  submitted  w^as  so  much  lower  than  the  other  bids  as 
to  indicate  a  mistake ;  that  upon  inquiry  it  was  found  that  the  wrong 
totals  had  been  given  for  the  transmission  line;  and  that  the  bid  as 
corrected  was  about  25  per  cent  lower  than  the  next  higher  bid : 

Held^  that  the  fact  that  the  error  occurred  as  claimed  being  clearly 
established,  there  is  no  legal  objection  to  accepting  the  bid  as  cor- 
rected; and  that  such  action  is  in  accordance  with  precedents  cited 
in  Dig.  Ops.,  J.  A.  G.  1912,  pp.  330  and  331. 

Ops.  J.  A.  G.  7e-240,  May  7,  1917. 

CONTRACT:  Percentage  basis. 

Upon  the  question  whether  or  not  contracts  can  legally  be  made 
for  such  medical  supplies  as  gauze  dressings  on  the  basis  of  cost  of 
producing  the  article  plus  a  reasonable  profit; 

Held^  that  in  view^  of  the  existing  emergency  the  statutes  requir- 
ing advertising  in  the  letting  of  such  contracts  are  not  operative, 
and  that  there  can  be  no  legal  objection  to  such  a  contract  as  is  pro- 
posed. 

15 


16        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

Further  remarhed^  that  the  proposed  method  of  making  contracts, 
on  the  basis  of  cost  plus  a  percentage,  is  being  applied  under  the 
existing  conditions  of  emergency  by  the  War  and  Navy  Departments 
not  only  in  procuring  supplies  but  in  construction  work. 

Ops.  J.  A.  G.  76-334,  May  3,  1917. 

DISCHARGE :   Under  proper  name  when  service  was  under  assumed  name. 

A  soldier  who  served  under  an  assumed  name  in  one  enlistment 
during  the  Philippine  insurrection  and  was  honorably  discharged 
therefrom,  but  was  dishonorably  discharged  from  a  subsequent  en- 
listment, requested  a  discharge  under  his  true  name  from  his  first 
■enlistment. 

Held^  that  the  act  of  August  22,  1912,  prescribing  "  that  the  Secre- 
tary of  War  and  the  Secretary  of  Navy  be,  and  they  are  hereby,  au- 
thorized and  required  to  issue  certificates  of  discharge  or  orders 
of  acceptance  of  resignation,  upon  application  and  proof  of  identity, 
in  the  true  name  of  such  persons  as  enlisted  or  served  under  assumed 
name,  while  minors  or  otherwise,  in  the  Army  or  Navy  during  any 
w^ar  between  the  United  States  and  any  other  nation  or  people  and 
w^ere  honorably  discharged  therefrom,"  is  mandatory,  and  is  appli- 
cable to  the  cases  of  all  soldiers  who  served  under  assumed  names 
during  the  Philippine  insurrection  and  were  honorably  discharged; 
and  that  the  character  of  the  separation  of  the  soldier  from  the 
service  after  a  subsequent  enlistment  is  a  distinct  matter  which  does 
not  affect  the  duty  of  the  Secretary  of  War  with  respect  to  the  pre- 
vious enlistment  from  which  the  soldier  was  honorably  discharged 
and  to  which  the  statute  applies  without  qualification. 

Ops.  J.  A.  G.  28-521,  Apr.  28,  1917. 

UNLISTED  MEN:  Making  good  time  lost. 

The  question  was  presented  whether,  in  view  of  the  provisions 
of  the  new  107th  Article  of  War,  an  enlisted  man  is  required  to 
make  good  time  lost  prior  to  March  1,  1917,  which  he  was  not  re- 
quired under  the  old  law  to  make  good. 

Ueld^  that  the  107th  Article  of  War,  being  a  reenactment  of  exist- 
ing legislation  on  the  subject  of  making  good  time  lost  by  enlisted 
men,  with  the  added  provision  that  it  applies  to  all  existing  enlist- 
ments, does  not  require  the  making  good  of  any  time  lost  prior  to 
March  1,  1917,  which  was  not  required  hy  the  old  law  to  he  made 
good^  but  does  require  all  time  lost  on  and  after  March  1,  1917,  due 
to  the  causes  mentioned  in  the  107th  Article  of  War,  to  be  made  good, 
regardless  of  the  date  of  enlistment;  in  other  words,  that  the  new 
law  differs  from  the  old  in  that  while  the  old  law  was  held  not  to 
operate  upon  enlistments  entered  into  prior  to  the  enactment  of  such 
law,  the  new  article  of  war,  in  addition  to  requiring  fulfillment  of 
all  past  obligations  incurred  under  the  old  law,  applies  to  all  time 
lost  in  future,  commencing  March  1,  1917,  due  to  the  causes  men- 
tioned in  the  article,  in  all  enlistments. 

Ops.  J.  A.  G.  34-052,  Apr.  30,  1917. 

EIELD  CLERKS:   Enlistment  in  National  Guard. 

Upon  inquiry  (a)  whether  Army  field  clerks  and  field  clerks. 
Quartermaster  Corps,  are  exempt  from  militia  duty,  and  {h)  whether 
their  enlistment  in  the  National  Guard  is  prohibited — 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ABMY.         17 

Held^  as  to  (a),  that  since  Army  field  clerks  and  field  clerks,  Quar- 
termaster Corps,  now  occupy  a  status  in  the  military  service  of  the 
United  States,  they  come  within  the  provisions  of  section  59  of  the 
national  defense  act,  which  exempts  "  persons  in  the  military  and 
naval  service  of  the  United  States  "  from  militia  duty,  and  therefore 
are  exempted  from  such  duty. 

Ileld^  as  to  (&),  that  the  National  Guard  is  plainly  designed  by  the 
national  defense  act  to  be  an  effective  force  and  to  supplement  the 
permanent  military  forces  of  the  Nation,  and  that  it  is  plainly  the 
intent  of  the  law  governing  its  organization  that  its  members  shall 
be  available  for  any  service  which  it  may  be  called  upon  to  perform, 
and  not  be  prevented  from  performing  such  duty  by  any  paramount 
obligation  in  the  permanent  military  force.  This  intent  is  clearly 
indicated  by  the  exemption  of  persons  in  the  military  and  naval 
service  of  the  United  States  from  militia  duty,  above  cited.  That 
special  authority  of  law  is  necessary  to  justify  the  occupancy  of 
status  in  both  the  Eegular  Army  and  the  National  Guard  by  the 
same  person  is  indicated-  by  the  authority  e:^ressly  conferred  by 
section  100  of  the  national  defense  act  for  officers  of  the  Regular 
Army  to  accept  commissions  in  the  National  Guard  with  the  permis- 
sion of  the  President  and  terminable  at  his  discretion.  There  is  no 
such  authority  for  any  persons  in  the  active  military  service  of  the 
United  States,  other  than  officers,  to  occupy  such  dual  status.  There- 
fore, the  effect  of  the  law  governing  the  organization  and  maintenance 
of  the  National  Guard  is  to  render  a  status  in  the  active  permanent 
Military  Establishment  incompatible  with  a  status  in  the  National 
Guard.  The  enlistment  of  Army  field  clerks  and  field  clerks.  Quar- 
termaster Corps,  is  therefore,  in  effect,  prohibited  by  law. 

Ops.  J.  A.  G.  58-051,  Mar.  27,  1917. 

FIELD  CLERKS:   Heat  and  light  allowance. 

Upon  request  for  reconsideration  of  the  Judge  Advocate  General's 
opinion  of  February  8,  1917  (Bui.  15,  W.  D.  1917,  p.  5),  the  follow- 
ing reply  was  made : 

''  This  office  has  very  carefully  reconsidered  the  question  whether 
field  clerks  are  entitled  to  fuel  and  light  allowances  in  public  quar- 
ters, and  I  regret  to  say  that  I  find  in  the  comptroller's  decision  of 
March  9,  1917,  referred  to  by  Mr.  G.  W.  Cooke,  field  clerk.  Quarter- 
master Corps,  nothing  to  warrant  changing  the  views  of  this  office 
on  the  subject.     (Bui.  15,  W.  D.  1917,  p.  5.) 

"In  his  decision  of  March  9,  the  comptroller  held  that  the  pro- 
vision of  the  act  of  June  3,  1916,  giving  pay  clerks.  Quartermaster 
Corps,  the  rank,  pay,  and  allowances  of  a  second  lieutenant,  oper- 
ated to  give  the  pay  clerks  of  the  Marine  Corps  the  pay  and  allow- 
ances of  a  second  lieutenant  of  the  Army.  The  reasons  therefor  will 
not,  in  my  opinion,  support  Mr.  Cooke's  view  that  the  same  decision 
^yill  warrant  the  conclusion  that  field  clerks  of  the  Army  are  en- 
titled to  the  allowances  of  a  second  lieutenant.  The  act  of  June  2i, 
1910,  provided  that  the  clerks  to  assistant  paymasters  in  the  Marine 
Corps  '  shall  receive  the  same  pay,  allowances,  and  other  benefits  as 
are  now  or  may  hereafter  be  provided  for  paymasters'  clerks  of  cor- 
responding length  of  service  in  the  United  States  Army';  while 
15173&— 20 2 


18        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENEKAL  OF  ARMY. 

the  act  of  August  29,  1916,  establishing  the  positions  of  field  clerk 
provides  that  such  clerks  having  the  requisite  service  as  therein 
prescribed  '  shall  receive  the  same  allowances,  except  retirement,  as 
heretofore  allowed  by  law  to  pay  clerks.  Quartermaster  Corps.'  In- 
asmuch as  it  had  been  the  decision  of  the  department  theretofore 
that  pay  clerks,  Quartermaster  Corps,  were  not  entitled  under  the 
law  to  fuel  and  light  in  kind  (Buls.  of  1915,  No.  5,  p.  5,  and  No.  21, 
p.  7),  it  follows  that  field  clerks  are  not  entitled  to  such  allowances, 
according  to  those  decisions,  no  provision  having  been  made  for 
them  by  law  in  the  meantime." 
Ops.  J.  A.  G.  6-135,  May  14,  1917. 

HEAT  AND  LIGHT:   Enlisted  men  below  grade  15  assigned  to  separate 
public  quarters. 

The  question  was  presented  whether  enlisted  men  below  grade  15, 
when  occupying  separate  public  quarters,  to  which  they  have  been 
assigned  by  proper  authority,  are  entitled  to  an  allowance  of  fuel 
therefor.  Paragraph  1036,  Army  Regulations,  1913,  authorizes  pre- 
scribed issue  of  fuel  to  officers  and  enlisted  men  entitled  to  and  occu- 
pying public  quarters.  Paragraph  1044  contains  the  following  pro- 
vision : 

"Enlisted  men  below  grade  15,  paragraph  9,  may  be  assigned  to 
separate  public  quarters  whenever  the  same  are  available  after  those 
noncommissioned  officers  of  higher  grades  have  been  accommodated 
and  when  the  conditions  of  service  appear  to  the  commanding  officer 
to  warrant  such  assignment." 

Held^  that  when  such  enlisted  men  are  assigned  to  and  occupy 
separate  public  quarters,  in  pursuance  of  A.  R.  1044,  they  are  "  en- 
titled to  and  occupying  public  quarters  "  within  the  meaning  of  A. 
R.  1036,  authorizing  the  issuance  of  fuel  therefor. 

Ops.  J.  A.  G.  72-410,  Apr.  28, 1917. 
MILITIA :   Members  of  Organized  Militia  in  National  Guard  organizations. 

In  certain  National  Guard  organizations  responding  to  the  Presi- 
dent's call  of  March  27,  1917,  were  found  members  who  had  not 
qualified  as  national  guardsmen  under  section  70  of  the  act  of  June 
3,  1916. 

Held^  that  inasmuch  as  the  President's  call  of  March  25,  1917,  ap- 
plied only  to  the  National  Guard  the  soldiers  in  question,  as  mem- 
bers of  the  Organized  Militia,  were  under  no  obligation  to  respond 
thereto,  and  the  fact  that  they  appeared  for  service  in  the  National 
Guard  organizations  did  not  operate  to  create  any  obligation  on  the 
part  of  the  Government  to  pay  or  provide  for  them ;  and  that  there- 
fore, while  they  still  remained  subject  as  organized  militiamen  to 
be  called  into  the  Federal  service  as  such,  they  should  be  dropped 
from  the  National  Guard  rolls  for  failure  to  qualify  as  national 
guardsmen. 

Ops.  J.  A.  G.  58-051.1,  Apr.  12,  1917. 

NATIONAL  GUARD:   Clothing  allowance. 

Upon  the  question  whether  or  not  a  member  of  the  National  Guard 
who  was  mustered  out  of  the  Federal  service  March  14,  1917,  and 
again  enters  the  Federal  service  under  the  call  of  March  25,  1917,  is 
entitled,  on  his  reentr}^  into  the  service  "  to  an  initial  clothing  allow- 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.         19 

Held^  that  the  muster  out  of  the  Federal  service  from  the  call  of 
June  18,  1910,  terminated  his  Federal  service  under  that  call,  en- 
titling him  to  full  settlement  for  such  service;  that  the  reentry  into 
the  service  under  the  call  of  March  25,  1917,  begins  a  new  period  of 
Federal  service,  and  that  he  is  entitled  to  the  benefits  of  the  laws 
applicable  thereto  as  a  distinct  period  of  Federal  service. 

Held  further^  that  as  the  law  gives  him  the  right  to  the  same  pay 
and  allowances  as  a  soldier  of  the  Kegular  Army  would  receive,  he 
should  be  credited  with  the  regular  initial  clothing  allowance,  but  the 
value  of  the  clothing  supplied  him  at  Federal  expense  upon  reentry 
into  the  service  and  which  he  is  permitted  to  retain  should  be  charged 
against  such  initial  allowance. 

Ops.  J.  A.  G.  58-700,  Apr.  27,  1917. 

NATIONAL  GUARD:    Continuation  of  active  service. 

A  soldier  in  a  National  Guard  organization  was,  through  mis- 
interpretation of  the  regulations  governing  the  National  Guard  Re- 
serve, continued  in  the  active  service  after  the  expiration  of  his  active 
enlistment,  and  it  was  asked  whether  he  might  be  continued  in  the 
active  service  and  be  allowed  pay  fo^;  the  time  already  served. 

II  eld  ^  that,  while  the  term  of  enlistment  prescribed  by  the  national - 
defense  act  would  seem  to  involve  an  automatic  passing  to  the  re- 
serve at  the  expiration  of  the  active  period  of  enlistment,  such  a 
deduction  can  not  be  held  to  interfere  with  the  soldier's  privilege 
of  continuing  in  the  active  service,  in  view  of  the  proviso  of  section 
69,  national-defense  act,  reading :  "  that  in  the  National  Guard  the 
privilege  of  continuing  in  active  service  during  the  whole  of  an  en- 
listment period  *  *  *  shall  not  be  denied  by  reason  of  any- 
thing contained  in  this  act " ;  and  that  since  the  soldier  referred  to 
in  the  inquiry  desired  to  continue  in  the  active  service,  and  actually 
did  so,  he  may  properly  be  regarded  as  having  legally  continued  in 
active  service,  his  service  in  that  capacity  having  been  accepted  by 
proper  authority. 

Ops.  J.  A.  G.  58-700,  Apr.  28, 1917. 

NATIONAL  GUARD :   Failure  of  members  of,  to  respond  to  call. 

Upon  the  recommendation  that  prompt  action  be  taken  to  appre- 
hend and  punish  such  members  of  National  Guard  organizations 
as  may  have  failed  to  respond  to  the  call  of  March  25,  1917: 

Ileld^  that  the  said  call  embraced  only  organizations  of  the  Na- 
tional Guard  and  did  not  include  members  of  the  Organized  Militia 
who  failed  to  qualify  under  the  national-defense  act  of  June  3,  191G ; 
that  by  the  terms  of  section  101  of  that  act  "  The  National  Guard, 
when  called  as  such  into  the  service  of  the  United  States,  shall, 
from  the  time  they  are  required  by  the  terms  of  the  call  to  respond 
thereto,  he  subject  to  the  laws  and  regulations  governing  the  Kegular 
Army  " ;  that  their  failure  to  respond  renders  them  punishable  under 
the  Articles  of  War  for  disobeying  the  orders  of  the  President  for 
their  mobilization,  and,  if  the  circumstances  evidence  an  intent  to 
abandon  the  Federal  service,  also  for  desertion;  and  that  they  may 
be  charged  with  either  offense,  or  both,  and  tried  therefor  by  court- 
martial. 

Ops.  J.  A.  G.  58-132.1,  Apr.  19,  1917. 


20        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENEKAL  OF  ARMY. 

OFFICERS'  RESERVE  CORPS:   Signal  Corps  Section. 

Held^  with  respect  to  the  construction  of  section  37  of  the  national 
defense  act  of  June  3,  1916,  as  applied  to  the  Signal  Corps,  that  the 
Signal  Corps  Section  of  the  Officers'  Reserve  Corps,  like  the  Regular 
Army,  should  comprise  two  divisions — i.  e.,  the  Signal  Corps  proper 
and  the  Aviation  Section  thereof;  that  the  proportion  of  officers  of 
the  several  grades  in  each  division  should  conform  to  the  proportion 
of  the  respective  divisions  of  the  Signal  Corps  of  the  Regular  Army, 
except  in  the  lowest  grade ;  and  that  such  proportion  will  practically 
correspond  to  the  organization  now  prescribed  for  the  units  of  the 
respective  divisions  of  the  Regular  Army. 

Held  further^  that  the  organization  of  the  units  of  the  respective 
sections  may  be  proceeded  with  in  the  usual  manner,  provided  the 
units,  when  complete,  will  not  give  a  proportion  of  officers  in  any 
grade  of  the  particular  section  of  the  Signal  Corps  in  excess  of  the 
proportion  prescribed  in  the  statute;  that  the  proportion  indicated 
by  the  statute  must  be  maintained  in  the  particular  section  of  the  Sig- 
nal Corps  as  a  whole,  but  need  not  be  maintained  in  a  particular  unit 
of  that  section  unless  the  departure  from  the  proportion  in  that  unit 
would  render  the  composition  gf  the  whole  section  such  as  to  violate 
the  rule. 

Ops.  J.  A.  G.  6-301.6,  Apr.  13,  21,  and  28,  1917. 

PRINTING :   Procurement  of,  for  military  forces  in  time  of  war. 

Held^  that  the  provision  in  the  Army  appropriation  act  approved 
May  12,  1917,  amending  section  87  of  the  public  printing  act  of 
January  12,  1895  (28  Stat.  622),  and  section  2  of  the  act  of  June  30, 
1906  (34  Stat.  762),  operates  to  remove,  in  time  of  war,  the  restric- 
tion against  the  procurement  of  printing  from  commercial  concerns 
contained  in  the  act  of  1895  and  the  restriction  contained  in  the  act 
of  1906  against  the  use  of  any  appropriations  for  printing  other  than 
those  made  specifically  and  solely  for  printing  and  binding,  so  that  in 
time  of  war  the  War  Department  may  procure  from  commercial  or 
other  printing  establishments  necessary  printing  for  the  military 
forces  and  pay  therefor  from  "  available  appropriations." 

Held  further^  that  the  said  amendment  of  May  12,  1917,  does  not 
make  available  the  War  Department's  allotment  at  the  Government 
Printing  Office  for  the  procurement  of  printing  by  the  department 
under  contracts  with  commercial  printing  establishments. 

Ops.  J.  A.  G.  5-113,  May  28,  1917. 

PRISONERS  OF  WAR:  Right  to  food  supplies  and  furniture  taken  from 
captured  vessel. 

The  former  commanding  officer  of  an  enemy  ship  in  the  status  of  a 
captured  vessel  of  war  requested  that  certain  food  supplies  and  certain 
furniture  and  kitchen  utensils  be  shipped  to  the  members  of  the  crew 
confined  at  a  military  post. 

Held^  that  the  proper  application  of  paragraph  64  of  the  Rules  of 
Land  Warfare,  reading :  "  Prisoners  are  only  entitled  to  what  is  ordi- 
narily used  in  the  captor's  country,  but  due  allowances  should,  if  pos- 
sible, be  made  for  differences  of  habits,  and  captured  supplies  should 
be  used  if  they  are  available,"  is  that  captured  supplies  should  be  used 
by  the  Government  for  the  subsistence  and  care  of  prisoners  and  not 
that  such  captured  supplies  should  be  turned  over  to  the  prisoners. 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.        21 

Held  fwriher^  that  since  the  furniture  and  kitchen  utensils  pertain 
to  the  ship  itself,  and  are  not  private  property  of  the  prisoners,  the 
Government  is  under  no  obligation  to  deliver  them  to  the  captive 
crew. 

Ops.  J.  A.  G.  99-290,  May  15, 1917. 

PBISONERS  OF  WAR:   Right  to  make  and  sell  toys  for  benefit  of  Ger- 
man Red  Cross. 

Upon  a  question  whether  prisoners  of  war  might  be  permitted  to 
make  and  sell  toys  for  the  benefit  of  the  German  Red  Cross. 

Ileld^  that  there  is  nothing  in  any  of  the  conventions  to  which  the 
United  States  is  a  party  which  would  impose  upon  the  United  States 
a  duty  to  permit  prisoners  to  aid  any  institutions  connected  with  or 
serving  an  enemy  of  the  United  States  in  any  capacity ;  and  that  the 
existence  of  any  such  right  on  the  part  of  prisoners  is  negatived  by 
that  part  of  article  6  of  the  Eules  of  Land  Warfare,  Hague  Conven- 
tion No.  4,  of  October  18,  1907,  reading:  "  *  *  *  the  wages  of 
the  prisoners  shall  ^o  toward  improving  their  condition  and  the  bal- 
ance shall  be  paid  to  them  on  their  release  after  deducting  the  cost  of 
their  maintenance,"  thus  plainly  contemplating  that  all  earnings  of 
prisoners  shall  be  retained  in  the  captor  country  until  the  termina- 
tion of  war. 

Ops.  J.  A.  G.  99-290,  May  15,  1917. 

PRIVATE   PROPERTY :  Claims  for  loss  of,  in  military  service. 

By  the  act  of  March  4,  1915  yZ^  Stat.  1077),  it  was  provided  that 
the  act  of  March  3,  1885,  relating  to  the  settlement  of  claims  of 
officers  and  enlisted  men  of  the  Army  for  the  loss  of  private  property 
destroyed  in  the  military  service  "  shall  hereafter  extend  to  cover 
loss  or  damage  to  the  regulation  allowance  of  baggage  of  officers  and 
enlisted  men  sustained  in  shipment  under  orders  to  the  extent  of  such 
loss  or  damage  over  and  above  the  amount  recoverable  from  the  car- 
rier furnishing  the  transportation."  The  question  was  presented 
whether  this  provision  applies  to  all  property  which  may  be  shipped 
as  change-of -station  allowance  of  baggage  (including,  for  example, 
civilian  clothing  of  the  claimant  officer  and  wearing  apparel  of  mem- 
bers of  his  family)  or  whether  its  application  is  limited  to  such 
articles  as  might  otherwise  be  certified  to  the  auditor  by  the  Secre- 
tary of  War  under  the  original  law  of  1885. 

neld^  that  since  the  provisions  of  the  act  of  1885  are,  by  the  act  of 
March  4,  1915,  extended  to  the  loss  or  damage  to  private  property  in 
shipment,  the  limitations  of  the  former  act  are  extended,  including 
the  provision  that  "the  liability  of  the  Government  under  this  act 
shall  be  limited  to  such  articles  of  personal  property  as  the  Secretary 
of  War,  in  his  discretion,  shall  decide  to  be  reasonable,  useful,  neces- 
sary, and  proper  for  such  officer  or  soldier  while  in  quarters  engaged 
in  the  public  service  in  line  of  duty" ;  that  it  is  only  because  of  this 
limitation  that  the  Secretary  of  War  is  required  to  make  any  cer- 
tificate for  the  auditor  in  case  of  the  loss  of  property  of  officers  and 
enlisted  men,  and  that  therefore  in  the  preparation  of  the  certificates, 
in  cases  of  loss  of  baggage,  there  should  be  listed  only  such  articles 
as  can  be  properly  certified  under  the  act  of  March  3, 1885. 

Ops.  J.  A.  G.  18-461,  Apr.  23,  1917. 


22        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

RESERVE  OFFICERS:    Not  to  be  assigned  as  assistants  to  juniors. 

Upon  the  question  whether  a  reserve  officer  of  the  grade  of  major 
could  be  assigned  to  active  service  as  an  assistant  to  an  officer  of  the 
Regular  Army  of  the  grade  of  captain, 

Held^  that  since  it  is  provided  in  section  38  of  the  national 
defense  act  that  while  reserve  officers  are  on  active  service  they  shall, 
"  b}^  virtue  of  their  commissions  as  reserve  officers,  exercise  command 
appropriate  to  their  grade  and  rank  in  the  organizations  to  which 
they  may  be  assigned,  *  *  *  .  Provided^  That  officers  so  ordered  to 
active  service  shall  take  temporary  rank  among  themselves,  and  in 
their  grades  in  the  organizations  to  which  assigned,  according  to  the 
dates  of  orders  placing  them  on  active  service ;  *  *  *  "  the  ques- 
tion must  be  answered  in  the  negative. 

Ops.  J.  A.  G.  6-301,  Apr.  18,  1917. 

STATUTE  OF  LIMITATIONS:   Trials  for  desertion. 

On  the  question  raised  whether  the  39th  Article  of  War  (new), 
which  became  operative  March  1,  1917,  under  the  provisions  of  the 
act  of  August  29,  1916  (39  Stat.  670),  is  applicable  to  a  desertion 
committed  prior  to  that  date. 

Held,  that  the  article  applies  to  past  offenses  with  respect  to  which 
the  old  statute  of  limitation  (103d  Article  of  War)  had  not  run  at 
the  time  of  its  repeal ;  that  under  the  usual  rule  statutes  of  limitation 
apply  to  past  offenses  (Bishop  on  Statutory  Crjmes,  3d  ed.,  sees.  263, 
265),  and  by  some  authorities  even  where  an  existing  statute  had 
completely  run  at  the  time  the  new  statute  became  operative ;  and 
that  the  proviso  to  the  39th  Article  of  War,  that  it  "shall  not  have 
the  effect  to  authorize  the  trial  or  punishment  for  any  crime  or  of- 
fense barred  by  the  provisions  of  existing  law,"  was  inserted  to 
limit  the  application  of  the  article  to  such  past  offenses  as  have  not, 
at  the  time  the  new  statute  becomes  operative,  been  "barred  by  the 
provisions  of  existing  law." 

Held  further^  that  section  5  of  the  said  act  of  August  29,  1916, 
prescribing  "that  all  offenses  committed,  and  all  penalties,  forfeit- 
ures, crimes,  or  liahilities  incurred  prior  to  the  taking  effect  of  this 
act  *  *  *  may  be  prosecuted,  punished,  and  enforced  in  the  same 
manner  and  with  the  same  effect  as  if  this  act  had  not  been  passed," 
does  not  include  such  a  liability  as  the  liability  to  trial,  but  refers 
to  liabilities  such  as  to  make  good  time  lost,  or  to  some  other  liability 
imposed  by  law  and  not  embraced  by  the  terms  immediately  pre- 
ceding it;  that  there  is  nothing  in  the  language  of  the  provision 
to  show  that  it  was  intended  to  cover  the  liability  to  trial,  and  that 
in  view  of  the  proviso  to  the  39th  Article  of  War  it  must  be  held 
that  it  has  no  application  thereto. 

Ops.  J.  A.  G.  26-480,  Apr.  26,  1917. 

WAR  PRISONERS :   Pay  of  officers. 

Under  Article  CVII,  Hague  Convention  (Appendix  6,  Field 
Service  Regulations,  United  States  Army,  1914,  p.  192)  officers  taken 
prisoner  are  entitled  to  "receive  the  same  rate  of  pay  as  officers  of 
coTTesfonding  rank  in  the  country  where  they  are  detained,  the 
amount  to  be  ultimately  refunded  by  their  own  government." 

HpIA  i^\,  that  the  term  "officers,"  as  here  used,  should  be  limited 
to  "coirmissioned  officers  of  the  enemy  army  and  navy  who  have 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENEBAL  OF  ARMY.        23 

been  taken  prisoner  in  navul  or  military  operations  or  by  process 
of  law"; 

(2)  That  as  the  rates  of  pay  of  officers  of  the  Army  and  Navy  as 
fixed  by  law  are  the  same  for  officers  of  both  services  having  the 
same  relative  rank  as  established  in  paragraph  12,  Army  Regula- 
tions, 1913,  there  is  no  objection  to  a  fixed  rate  of  pay  for  naval  and 
military  officers  who  are  taken  prisoner,  based  on  the  table  of  rela- 
tive rank  as  established  in  said  regulations;  and, 

(3)  That  the  term  "rank,"  as  used  in  the  convention,  should  be 
regarded  as  equivalent  to  "grade,"  and  as  so  construed  there  can  be 
no  objection  to  adopting  as  a  provisional  basis  of  j^ayment  the  base 
pay  prescribed  by  law  for  officers  of  the  corresponding  grade  of  the 
Regular  Army  of  the  United  States,  without  longevity  increase  or 
allowances. 

Ops.  J.  A.  G.  99-290,  May  14,  1917. 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 
NATIONAL  GUARD:    Additional  pay  of  enlisted  men  as  gunners. 

The  question  was  presented  for  decision  whether  enlisted  men  of 
the  Organized  Militia  or  National  Guard  when  brought  into  the 
service  of  the  United  States  under  the  militia  act  of  1903,  as 
amended,  or  when  drafted  into  the  Federal  service  under  section  111 
of  the  act  of  June  3,  1916,  are  entitled  to  receive  additional  pay  for 
qualifications  as  first  or  second  class  gunners  attained  prior  to  their 
being  brought  into  the  service  of  the  United  States. 

Held^  that  inasmuch  as  the  requirements  for  qualifications  as  gun- 
ners are  the  same  for  the  enlisted  men  in  the  militia  or  National 
Guard  as  for  the  enlisted  men  of  the  Regular  Army,  and  as  the 
laws  relating  to  pay  give  the  militia,  when  brought  into  the  service 
of  the  United  States,  the  same  pay  and  allowances  as  are  or  may  be 
provided  by  law  for  the  Regular  Army,  they  are  entitled  to  the 
additional  pay  as  gunners  under  their  qualifications  attained  prior 
to  their  being  brought  into  the  Federal  service,  subject  to  the  condi- 
tions imposed  by  paragraph  1344,  Army  Regulations,  1913. 

Comp.  Treas.  July  21,  1916. 

PAY    AND    ALLOWANCES:   Retired    officers    and    enlisted    men    commis- 
sioned in  the  National  Guard. 

The  following  questions  were  presented  for  decision : 
{a)  Whether  a  retired  officer  of  the  Regular  Army,  appointed  as 
an  officer  of  the  National  Guard  and  detailed  as  property  and  dis- 
bursing officer,  can  receive  the  pay  as  property  and  disbursing  officer 
provided  for  by  section  67,  act  of  June  3,  i916,  and  the  National 
Guard  pay  provided  by  section  109,  act  of  June  3,  1916,  in  addition 
to  his  retired  pay  of  the  Regular  Army. 

{h)  Whether  a  retired  enlisted  man  of  the  Regular  Army,  ap- 
pointed as  an  officer  of  the  National  Guard  and  detailed  as  proper:' 
and  disbursing  officer,  can  receive  the  pay  as  property  and  disbursing 
officer  provided  by  section  67  of  the  act  of  June  3,  1916,  and  the 
National  Guard  pay  provided  by  section  109  of  the  act  cited,  in 
addition  to  his  pay  as  an  enlisted  man,  retired,  of  the  Regular  Army. 


24        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENEKAL  OF  ARMY. 

Section  74  of  the  national-defense  act  of  June  3,  1916,  speci- 
fying the  class  from  which  National  Guard  officers  may  be  selected, 
includes  retired  officers  of  the  Regular  Army,  but  does  not  include 
retired  enlisted  men  except  as  they  may  become  eligible  by  enlist- 
ing in  the  National  Guard. 

Held^  as  to  (a),  that  the  effect  of  the  statutory  provision  for  the 
appointment  of  retired  officers  of  the  Regular  Army  as  officers  in 
the  National  Guard  is  to  give  a  retired  officer  so  appointed  the  pay 
provided  for  in  sections  67  and  109  of  the  national-defense  act  in 
addition  to  his  retired  pay  in  the  Army;  and,  as  to  (&),  that,  inas- 
much as  the  statute  does  not  provide  for  the  entry  of  retired  enlisted 
men  into  the  National  Guard,  previous  decisions  are  applicable 
(20  Comp.  Dec,  49,  and  23  Id.^  444),  which  are  to  the  effect  that 
the  pay  of  a  retired  enlisted  man  of  the  Army  while  in  the  Federal 
service  as  a  member  of  the  Organized  Militia  or  National  Guard 
should  be  discontinued ;  in  other  words,  that  there  is  no  prohibition 
against  the  commissioning  of  a  retired  enlisted  man  in  the  National 
Guard,  after  his  enlistment  therein,  and  then  appointing  him  prop- 
erty and  disbursing  officer  and  paying  him  therefor  from  the 
amount  appropriated  from  Federal  funds,  but  during  such  time  he 
will  not  be  entitled  to  continue  to  draw  his  retired  pay  as  an  en- 
listed man  of  the  Army.  Accordingly,  question  {a)  answered  in 
the  affirmative  and  question  ( 5 )  in  the  negative. 

Comp.  Treas.  May  21,  1917. 

RETIRED  OFFICERS :   Pay  on  being  transferred  to  the  active  list. 

A  retired  officer  of  the  Army  in  the  grade  of  first  lieutenant  was 
transferred  to  the  active  list  March  22,  1917,  "  with  the  rank  of  cap- 
tain of  Infantry  from  July  1,  1916,"  under  the  provisions  of  the  act 
approved  March  4,  1915  (38  Stat.  1068),  which  authorizes  the  trans- 
fer of  retired  officers  to  the  place  on  the  active  list  which  they  would 
have  had  had  they  not  been  retired.  The  officer  duly  accepted  his 
commission  as  captain,  and  thereupon  the  question  was  presented 
whether  he  was  entitled  to  the  difference  in  pay  between  the  grades 
of  first  lieutenant  and  captain  commencing  July  1,  1916,  the  time 
from  which  his  rank  as  captain  dated  under  the  order  transferring 
him  to  the  active  list. 

Held^  that  the  date  when  the  officer  accepted  his  commission  as 
captain,  and  thereby  became  invested  with  the  office,  was  the  date 
when  the  pay  as  captain  commenced,  and  not  before,  since  the  rate 
of  pay  is  attached  to  the  office  and  not  to  the  rank  which  the  officer 
has. 

Comp.  Treas.  May  3,  1917. 

RETIRED  OFFICERS:   Pay  under  assignment  to  active  duty  in  time  of 
war. 

Section  24  of  the  national-defense  act,  approved  June  3, 1916,  con- 
tains the  provision : 

"That  in  time  of  war  retired  officers  of  the  Army  will  be  em- 
ployed on  active  duty,  in  the  discretion  of  the  President,  and  when 
so  employed  they  shall  receive  the  full  pay  and  allowances  of  their 
grade." 

Held^  that  this  provision  supersedes  previous  statutes  governing 
the  pay  of  retired  officer  assigned  to  active  duty  in  time  of  war  and 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENEBAL  OF  AEMY.        2o 

that  under  such  provision  all  retired  officers  of  the  Army  placed  on 
active  duty  in  time  of  war  are  entitled  to  the  full  pay  and  allowances 
of  their  grades ;.  but  it  has  reference  only  to  such  officers  as  are  specif- 
ically assigned  to  active  duty  of  a  strictly  military  character  under 
said  provision,  and  does  not  apply  to  those  detailed  as  instruct  oi^s  in 
educational  institutions. 

23  Comp.  Treas.  577;  id.  605. 


DECISIONS  OF  THE  COURTS. 

CONTRACTS:   Construction  of. 

A  meat-packing  company  contracted  with  the  Navy  Department 
to  furnish  to  the  navy  yard  at  Puget  Sound,  Wash.,  or  to  vessels 
docking  thereat,  during  the  fiscal  year  ending  June  30,  1908,  certain 
meats,  the  quantity  to  be  furnished  being  "165,000  pounds,  more  or 
less,"  according  to  the  requirements  of  the  service.  The  contract  con- 
tained this  provision : 

"  The  quantities  called  for  above  are  only  estimated,  and  the  right 
is  reserved  to  exact  more  than  the  amount  of  any  article  included  in 
the  above  class  at  the  contract  price  or  to  accept  less  than  the  full 
amount  thereof,  as  the  needs  of  the  public  service  may  require." 

After  the  contract  was  entered  into  the  President  decided  to  send 
the  Atlantic  Fleet  around  the  world,  and  the  contractor  was  re- 
quired, over  his  protest,  to  furnish  at  the  contract  price  meat  to  ves- 
sels of  that  fleet  touching  at  the  Puget  Sound  Navy  Yard.  The 
quantity  thus  furnished  to  the  Atlantic  Fleet  was  200,983  pounds, 
which  cost  the  contractor  $21,767.80,  and  for  which  the  contractor 
received  from  the  Government  $17,531.71,  the  price  of  meat  having 
risen  subsequent  to  the  date  of  the  contract.  The  contractor  brought 
suit,  insisting  that  its  contract  only  required  it  to  furnish  meats  to 
the  vessels  of  the  Pacific  Fleet  which  might  dock  at  the  Puget  Sound 
Navy  Yard  during  the  fiscal  year,  and  that  it  could  not  be  required 
to  furnish  meats  at  contract  rates  to  the  vessels  of  the  Atlantic  Fleet 
docking  at  that  station,  and  that  the  contractor  was  therefore  en- 
titled to  recover  from  the  Government  the  market  price  of  all  meats 
furnished  by  it  to  the  vessels  of  the  Atlantic  Fleet,  less  the  amount 
paid  based  on  the  contract  price. 

Held^  that  the  claimant  could  not  recover,  as  there  was  nothing  in 
the  contract  indicating  that  the  agreement  referred  only  to  the  re- 
quirements of  the  Pacific  Fleet,  and  as  the  quantities  of  meat  to  be 
furnished  by  the  contractor  depended  upon  the  determination  of  the 
Chief  of  the  Bureau  of  Supplies  and  Accounts  of  the  Nav^  Depart- 
ment, whose  decision  as  to  the  quantities  of  meat  to  be  furnished  was, 
by  the  express  terms  of  the  contract,  final,  and  that  unless  the  con- 
tractor had  been  required  to  furnish  a  totally  unreasonable  amount, 
or  unless  bad  faith  was  shown,  the  contractor  could  not  complain, 
the  case  being  governed  by  the  principle  laid  down  in  Brawlcy  v. 
United  States  (96  U.  S.,  168,  172),  where  the  meaning  of  the  words 
"  more  or  less  "  is  discussed  thus : 

"If,  however,  the  qualifying  words  are  supplemented  by  other 
stipulations  or  conditions  which  give  them  a  broader  scope  or  a 
more  extensive  significance,  then  the  contract  is  to  be  governed  by 


26        DIGEST  OF  OPINIONS  JUDOE  ADVOCATE  GENEEAL  OF  ARMY. 

such  added  stipulations  or  conditions.  As,  if  it  be  agreed  to  furnish 
so  many  bushels  of  wheat,  more  or  less,  according  to  what  the  party 
receiving  it  shall  require  for  the  use  of  his  mill,  then  the  contract  is 
not  governed  by  the  quantity  named,  nor  by  that  quantity  with 
slight  and  unimportant  variations,  but  by  what  the  receiving  party 
shall  require  for  the  use  of  his  mill;  and  that  variation  from  the 
quantity  named  Avill  depend  upon  his  discretion  and  requirements 
so  long  as  he  acts  in  good  faith." 

Carstens  Packing  Co.  v.  The  United  States^  decided  by  the  Court 
of  Claims  May  28,  1917. 

HORSES :   Claims  for  loss  of,  in  military  service. 

In  a  recent  case  (Frank  M.  Andretvs  v.  The  United  States^  de- 
cided Apr.  30,  1917)  the  Court  of  Claims  disposed  of  a  number  of 
claims  of  officers  of  the  Army  for  loss  of  horses  in  the  military  serv- 
ice, such  suits  having  been  brought  under  the  act  of  March  3,  1885 
(23  Stat.  350),  which  provides  for  the  reimbursement  of  officers 
and  enlisted  men  for  the  loss  of  private  property  in  the  military 
service  under  conditions  therein  specified.  (Previous  decisions  of 
the  Court  of  Claims  were  in  suits  brought  under  other  statutes,  re- 
lating to  horses  lost  in  time  of  war.  See  Bui.  No.  8,  W.  D.  1916,  p. 
13,  and  Bui.  No.  15,  W.  D.  1917,  p.  15.)  The  Comptroller  of  the 
Treasury  finally  held  in  a  decision  dated  October  20,  1913  (20  Comp. 
Dec.  238),  that  the  act  of  March  3,  1885,  did  not  apply  to  horses. 
In  the  recent  decision  in  the  Andreios  case,  the  Court  of  Claims  held 
that  the  act  of  1885  does  authorize  reimbursement  to  officers  for 
horses  lost  in  the  military  service,  in  tims  of  peace^  under  the  cir- 
cumstances mentioned  in  the  act.  The  court  defined  some  of  the 
limitations  of  the  act  as  follows: 

"  It  does  not  follow  from  what  has  been  said  that  every  horse 
privately  owned  which  dies  while  its  owner  is  in  the  military  service 
can  be  paid  for.  Congress  did  not  intend  by  the  provisions  of  the 
act  of  1885  to  make  the  Government  an  insurer  against  loss  or  de- 
struction of  a  soldier's  private  property.  The  officer  or  enlisted 
man  must  be  in  the  military  service  of  the  United  States  and  the 
loss  of  his  private  property  must  likewise  have  been  in  the  military 
service,  not  merely  while  in  the  military  service  but  by  reason  of 
some  exigency  or  necessity  of  the  military  service  and  not  incident 
to  a  horse  out  of  as  Avell  as  in  that  service.  An  analysis  of  the  stat- 
ute in  this  respect  is  most  succinctly  stated  by  Assistant  Comptroller 
Bowers  (3  Comp.  Dec.  636)  :  '  The  loss  must  have  been  caused  by 
some  exigency  or  necessity  of  the  military  service,  such  as  naturally 
would  be  attributed  to  and  would  flow  from  such  service.  To  establish 
a  case  under  this  act  the  property  must  have  been  lost  or  destroyed 
in  the  military  service;  not  merely  while  it  was  in  use  in  that  serv- 
ice, but  because  it  was  in  that  service.  Being  in  that  service  must 
have  been  the  proximate  cause  of  the  loss.  The  loss  must  not  have 
been  caused  by  the  natural  wear  and  tear  or  deterioration  of  the 
iirticles  in  ordinary  use  in  the  service.  Inherent  defects  in  articles, 
on  account  of  which  they  are  unable  to  stand  the  ordinary  strain 
of  the  service,  will  prevent  recovery.' 

"  Congress  by  the  remedial  legislation  in  issue  was  providing  re- 
imbursement for  property  lost  by  reason  of  the  peculiar  hazards  to 
which  it  was  exi)osed  while  in  military  service,  and  by  so  doing  did 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ABMY.        27 

not  intend  to  cover  the  whole  field  of  accidental  loss  or  destruction  in 
no  way  connected  w^ith  the  dangers  incident  to  military  service; 
simply  because  the  soldier  had  carried  his  private  mount  into  the 
military  service  to  be  used  by  him  in  military  activities  as  his  mili- 
tary duties  required  such  a  use  does  not  of  itself  render  the  defend- 
ants liable  for  its  death  if  the  same  ensued  from  any  cause  not  di- 
rectly connected  with  or  incident  to  military  service.  *  *  *  While 
the  line  of  demarcation  may  in  some  instances  be  difficult  of  ascer- 
tainment, still  the  intendment  of  the  statute  is  open  and  apparent. 
The  term  '  in  the  rwllltary  Her^rice '  has  a  settled  and  universally  ac- 
cepted legal  meaning  and  would  not  appear  in  the  act  if  it  was  not  de- 
signed to  limit  liability  for  the  loss  and  destruction  of  private  prop- 
erty occurring  by  reason  of  and  in  the  actual  performance  of  military 
"duty." 

In  view  of  these  limitations  certain  claims  were  disposed  of  as 
follows : 

{a)  Where  an  officer's  horse  that  had  been  put  in  a  quartermaster's 
pasture  wdiile  the  officer  was  away  from  the  post  on  leave,  and  it  was 
discovered  with  a  serious  fracture  of  its  foreleg,  necessitating  its  be- 
ing shot,  held^  that  the  officer  could  not  recover,  as  there  was  nothing 
in  the  record  to  connect  the  injury  with  the  military  service. 

(2))  Where  an  officer's  horse  was  in  charge  of  the  Quartermaster's 
Department  and  being  led  by  an  attendant  through  the  streets  of 
Seattle,  Wash.,  to  be  placed  on  board  a  transport  for  shipment  to  the 
Philippine  Islands  and  w^as  so  injured  when  it  slipped  and  fell  on  the 
asphalt  pavement  that  it  had  to  be  shot,  held^  that  the  claimant  could 
not  recover,  as  the  horse's  death  was  purely  accidental,  there  being 
nothing  in  the  record  to  connect  the  loss  with  the  requirements  of  the 
act  of  1885. 

((?)  An  officer's  horse  died  of  acute  enteritis,  which  two  veterina- 
rians pronounced  as  having  been  caused  by  unwholesome  forage  pro- 
vided for  it  by  the  Government,  Held^  that  the  horse  was  lost  in  the 
military  service  due  to  one  of  the  unavoidable  infirmities  of  the 
military  system  of  feeding  military  horses,  and  that  the  claimant  was 
entitled  to  recover. 

(c?)  An  officer's  horse  died  of  cerebrospinal  meningitis.  He  had 
been  ridden  by  the  officer  and  "  came  in  rather  warm."  The  same 
evening  the  horse  became  ill.  The  next  day  he  developed  congestion 
of  the  lungs  and  died  as  the  result.  Held^  that  the  officer  could  not  re- 
cover, as  the  horse  obviously  died  from  illness  not  incident  to  the 
military  service. 

Other  cases  were  dismissed  because  the  claimants  had  not  filed  a 
-claim  with  the  auditor  within  two  years  after  the  loss  occurred,  as 
required  by  the  act. 

liEASES :   Payment  of  rent  by  Government. 

The  Government  leased  premises  for  a  post  office,  and  during  the 
life  of  the  lease  the  premises  were  sold  under  a  mortgage  foreclosure. 
Under  the  terms  of  the  lease  the  annual  rental  was  payable  in  quar- 
terly installments  on  the  first  days  of  October.  January,  April,  and 
July.  The  new  owner  took  title  November  23  and  claimed  the  rental 
for  the  whole  of  that  quarter,  payable  January  1.  The  demand  was 
refused  and  the  Government  apportioned  the  rental  between  the 
old  and  the  new  owners,  the  latter  being  paid  only  from  the  date 


28        mOEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL   OF  AEMY. 

when  he  took  title  to  the  premises,  November  23,  1912.  In  an  action 
by  the  neAv  owner  in  the  Court  of  Claims, 

Held,  that  he  was  entitled  to  the  rent  for  the  whole  quarter  under 
the  well-settled  common  law  rule  that  in  cases  like  this  the  appor- 
tionment of  rent  is  not  allowable,  as  the  rent  does  not  accrue  from 
day  to  day,  but  only  accrues  at  the  time  it  becomes  due  under  the 
terms  of  the  lease  and  is  indivisible. 

Musselman  v.  United  /States,  decided  by  the  Court  of  Claims  May 
28,1917.  ^ 

PAY  AND  ALLOWANCES :   Longevity  pay  of  members  of  Medical  Beserve 
Corps. 

In  the  case  of  Yeamans  v.  United  States,  decided  by  the  Court  of 
Claims  May  7,  1917,  the  plaintiff,  while  serving  as  a  contract  surgeon 
of  the  Army,  had  been  appointed  a  member  of  the  Medical  Reserve 
Corps  in  accordance  with  section  7  of  the  act  of  April  23,  1908  (35 
Stat.  66),  and  he  claimed  that  he  was  entitled  to  longevity  increase 
upon  his  services  as  contract  surgeon.  Section  9  of  the  act  of  April 
23,  1908,  provided : 

"  That  officers  of  the  Medical  Reserve  Corps,  when  called  upon 
active  duty  in  the  service  of  the  United  States,  as  provided  in  sec- 
tion 8  of  the  act,  shall  be  subject  to  the  laws,  regulations,  and  orders 
for  the  government  of  the  Regular  Army,  and  during  the  period  of 
such  service  shall  be  entitled  to  the  pay  and  allowances  of  first 
lieutenants  of  the  Medical  Corps  with  increase  for  length  of  service 
now  allowed  by  law,  said  increase  to  be  computed  only  for  time  of 
active  duty." 

Held,  that  this  legislation  was  prospective  in  its  character  and 
operation  and  does  not  contemplate  the  computation  of  former  serv- 
ice in  fixing  the  longevity  pay  of  the  officers  rendering  service  in 
the  Medical  Reserve  Corps;  that  the  plain  meaning  of  the  language 
quoted  is  that  officers  of  the  Medical  Reserve  Corps  shall  only  re- 
ceive longevity  pay  while  they  are  on  active  duty  in  the  active  serv- 
ice of  the  United  States  in  the  Medical  Reserve  Corps,  and  that  no 
service  performed  elsewhere,  even  though  performed  in  other 
branches  of  the  military  service,  can  be  computed  in  determining  t  he 
longevity  pay  provided  for  in  this  statute. 


BULLETIN  42. 

OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

ALLOTMENT  OF  PAY :   Purchase  of  liberty  bonds. 

On  the  question  raised  as  to  the  legality  of  waiving  the  provisions 
of  paragraph  1347,  Army  Regulations,  restricting  allotment  privi- 
leges as  to  soldiers  serving  within  the  United  States,  so  as  to  permit 
allotments  to  banking  institutions  for  the  purchase  of  liberty  bonds. 

H£,ld^  that,  as  the  statute  pursuant  to  which  the  regulation  was 
made  (sec.  16,  act  of  Mar.  2,  1899,  30  Stat.  981),  authorizes  the  Sec- 
retary of  War  "  to  permit  enlisted  men  of  the  United  States  Army  to 
make  allotments  of  their  pay,  under  such  regulations  as  he  may  pre- 
scribe, for  the  support  of  their  families  or  relatives,  for  their  own 
savings^  and  for  other  purposes,  during  such  time  as  they  may  be 
absent  on  distant  duty,  or  under  other  circumstances  warranting  such 
action^''  the  language  being  broad  enough  to  authorize  allotments  of 
pay  for  the  purposes  proposed,  there  can  be  no  legal  objections  to 
the  issue  of  instructions  authorizing  such  allotments  to  be  made,  and 
that  such  instructions  will  operate  as  a  modification  of  the  regulations 
so  as  to  permit  of  the  allotments  for  the  purposes  in  view. 

Ops.  J.  A.  G.  72-260,  June  13,  1917. 

AVIATION  OFFICERS:   Travel  orders. 

On  the  question  whether  the  action  of  the  Secretary  of  War  in 
authorizing  the  Chief  Signal  Officer  "  to  issue  orders  to  officers  in  the 
aviation  section.  Signal  Corps,  under  his  immediate  command,  direct- 
ing journeys  on  duty  in  connection  with  the  aviation  service  of  the 
Army,"  extends  to  officers  of  the  aviation  section.  Signal  Officers' 
Reserve  Corps,  under  the  command  of  the  Chief  Signal  Officer,  trav- 
eling on  duty  in  connection  with  the  aviation  service  of  the  Army. 

Held^  that  the  authority  conferred  has  reference  to  the  provisions 
in  the  Army  appropriation  act,  approved  May  12,  1917,  providing: 
"  That  mileage  to  officers  in  the  aviation  section.  Signal  Corps,  travel- 
ing on  duty  in  connection  with  aviation  service  shall  be  paid  from  the 
appropriation  for  the  work  in  connection  with  which  the  travel  is 
performed ;"  and  that  the  provision  of  this  act  was  evidently  intended 
to  apply  to  all  travel  and  duty  in  connection  with  the  aviation  service 
whether  performed  by  regular  or  reserve  officers  of  the  aviation  sec- 
tion, Signal  Corps ;  and  that  the  authority  in  question  should  be  con- 
strued as  extending  to  officers  of  the  aviation  section,  Signal  Officers' 
Reserve  Corps,  when  traveling  on  duty  in  connection  with  the  avia- 
tion service  of  the  Army. 

Ops.  J.  A.  G.  94-210,  June  13,  1917. 

BONDS  OF  DISBURSING  OFFICERS:   Reserve  officers. 

On  the  question  raised  as  to  the  proposed  action  of  the  Chief  of 
Ordnance  in  requiring  reserve  officers  assigned  to  duty  as  disbursing 
officers  to  execute  official  bonds  in  limited  amounts  for  the  protection 
of  the  United  States, 

29 


30        DIGEST   OF  OPINIONS  JUDGE  ADVOCATE  GENEEAL   OF  AKMY. 

Held^  that  there  can  be  no  legal  objection  to  the  proposed  action; 
that  it  is  well  settled  that  heads  of  departments,  although  there  be 
no  statutory  provision  directing  such  action,  may  require  bonds  from 
officers  for  the  protection  of  the  United  States ;  and  that  where  pub- 
lic property  is  intrusted  to  individuals,  although  there  is  no  law  re- 
quiring a  bond,  the  head  of  a  department  may  properly  require  one^ 
citing  Dig.  Ops.  J.  A.  G.  1912,  198. 

Ops.  J.  A.  G.  12-110,  June  15,  1917. 

CONTINUOUS-SERVICE  PAY :   Delay  in  re  enlistment. 

In  the  case  of  a  sergeant  detailed  as  instructor  of  the  National 
Guard  who  was  discharged  as  such  to  accept  a  commission  in  the  Na- 
tional Guard  and  within  three  months  after  his  discharge  applied 
for  information  as  to  whether  he  could  "reenlist  and  be  redetailed 
as  sergeant-instructor,"  adding,  -"if  authority  is  granted  I  will  make 
proper  application  for  reenlistment;"  and  owing  to  delay  in  delivery 
of  the  letter  advising  him  that  he  could  reenlist  an^  be  redetailed  as 
requested  his  reenlistment  was  not  accomplished  within  the  period  of 
three  months, 

Ileld^  on  the  authority  of  the  decision  of  the  Comptroller  of  the 
Treasury,  dated  June  16, 1914  (W.  D.  Bui.  33,  p.  16),  to  the  effect  that 
where  a  soldier  made  application  for  reenlistment  before  the  expira- 
tion of  the  three  months'  period,  "but  on  account  of  delays  apparently 
for  the  convenience  of  the  Government  and  without  his  fault,"  the 
enlistment  was  not  accomplished  within  the  prescribed  period,  the 
soldier  "  was  entitled  to  have  his  reenlistment  take  effect  before  the 
expiration  of  said  three  months'  period  and  was  entitled  to  the  benefit 
of  his  prior  service  in  computing  his  pay  for  continuous  service;'^ 
that  the  case  in  reference  comes  within  the  reasons  of  this  decision 
of  the  comptroller  inasmuch  as  the  soldier  in  his  request  for  informa- 
tion stated  that  if  the  authority  was  granted  he  would  "  make  proper 
application  for  reenlistment;"  and  that  his  letter  making  such  request 
should  be  regarded  as  his  application  for  reenlistment,  and  as  bring- 
ing him  within  the  decision  of  the  comptroller  of  June  16,  1914^ 
supra;  and,  therefore,  that  the  soldier  should  be  viewed  as  having 
reenlisted  within  three  months  after  the  date  of  his  muster  out  so  as 
to  entitle  him  to  the  full  benefits  of  continuous  service. 

Ops.  J.  A.  G.  72-220,  June  1,  1917. 

DENTAL  CORPS:   Appointments. 

With  reference  to  the  requirement  of  the  act  of  March  3,  4911  (36 
Stat.  1054),  prescribing  that  appointees  to  the  Dental  Corps  nmst  be 
"graduates  of  a  standard  dental  college,"  and  the  opinion  of  the 
Judge  Advocate  General  of  September  25,  1916,  that  certain  institu- 
tions which  were  disqualified  to  confer  degrees  by  reason  of  noncom- 
pliance with  the  laws  of  the  State  as  to  filing  evidence  as  to  their 
equipment,  faculty,  and  other  facilities  for  instruction,  should  not  be 
recognized  as  standard  colleges,  additional  facts  were  submitted 
showing  that  the  particular  college,  since  the  prior  decision,  had  com- 
plied with  the  requirements  of  the  State  Jaw  on  the  subject  and  been 
recognized  by  the  proper  State  authorities  as  an  institution  having  a 
standard  course  and  as  qualified  to  confer  degrees  in  dental  surgery, 
it  further  appearing  that  the  college  is  one  of  the  oldest  dental 
schools  in  the  world;  that  the  failure  to  comply  with  the  require- 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.        31 

ments  of  the  State  law  was  due  to  inadvertence ;  and  that  the  equip- 
ment of  the  college  respecting  property,  faculty,  and  other  facilities 
for  instruction,  (luring  the  period  preceding  its  recent  qualification 
under  the  State  law  was  substantially  identical  with  its  existing  equip- 
ment in  these  respects, 

Held,  that  if  the  department  is  satisfied  that  these  representations 
respecting  the  equipment  of  the  institution  during  the  period  preced- 
ing its  recent  recognition  by  the  State  authorities  is  correct,  the  grad- 
uates of  that  institution  who  were  graduated  during  such  period  may 
be  recognized  as  graduates  of  a  standard  dental  college  within  the 
meaning  of  the  act  of  March  3,  1911. 

Ops.  J.  A.  G.  6-227.3,  May  24,  1917. 

DESERTION  IN  TIME  OF  WAR:  Expenses  of  trial;  Place  of  trial. 

Desertion  in  time  of  war  being  a  capital  offense  punishable  by 
death,  or  such  other  punishment  as  a  court-martial  may  direct,  and 
the  use  of  depositions  in  such  a  case  not  being  authorized  except  on 
the  part  of  the  defense, 

Tleld^  that  since  trials  for  desertion  in  time  of  war  will  ordinarily 
entail  greater  expense  than  trials  for  desertion  in  time  of  peace,  com- 
manding officers  and  all  others  concerned  should  be  more  than  ever 
vigilant  to  see  that  charges  for  desertion  in  time  of  war  are  rigidly 
investigated  and  full  and  complete  reports  made  with  reference 
thereto  for  the  information  of  department  commanders. 

Held  further^  that  department  commanders  should  be  instructed  to 
take  into  consideration  the  expense  involved  in  procuring  the  per- 
sonal attendance  of  witnesses,  in  addition  to  any  items  of  expense  here- 
tofore considered,  in  determining  whether  alleged  deserters  in  time 
of  war  shall  be  tried  where  they  may  be  returned  to  military  control, 
at  the  place  where  their  commands  may  be  serving,  or  whether  they 
shall  be  sent  to  the  United  States  Disciplinary  Barracks,  Fort  Leav- 
enworth, Kans.,  or  to  the  Pacific  branch  thereof  at  Alcatraz,  Cal., 
for  trial. 

Ops.  J.  A.  G.  26-800,  June  20,  1917. 

FIELD  CLERKS:   Hunting  leave. 

In  view  of  the  department's  ruling  that  Army  field  clerks  and 
field  clerks,  Quartermaster  Corps,  are  entitled  to  the  benefits  of  the 
leave  laws  applicable  to  commissioned  officers  of  the  Army,  the  ques- 
tion was  presented  whether  such  clerks  are  entitled  to  the  hunting 
privilege  provided  by  Army  Regulations  65  and  66. 

Held^  that  inasmuch  as  the  leave  allowance  of  officers  is  limited 
by  statute,  the  so-called  hunting  privilege  provided  by  the  regula- 
tions can  only  be  justified  on  the  ground  that  it  produces  results  of 
a  military  value,  and  that  as  the  reasons  underlying  the  granting  of 
such  leave  to  officers  who  are  professional  soldiers  do  not  apply  to 
field  clerks,  such  clerks  can  not  legally  be  granted  leave  to  hunt  under 
the  said  regulations  in  addition  to  their  statutory  leave. 

Ops.  J.  A.  G.  2-126,  June  8,  1917. 

FIELD   CLERKS:   Purchase   of  subsistence   supplies   from   Quartermaster 
Corps. 

The  question  was  presented  whether  acting  Army  field  clerks  are 
entitled  to  the  privilege  of  purchasing  food  supplies  from  the  Quar- 
termaster's Department.     The  term  "acting  Army  field  clerk"  is 


32        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENEEAL  OF  ARMY. 

applied  to  the  temporary  headquarter 's  clerks  employed  during  the 
continuance  of  the  existing  emergency. 

Held,  that  the  statutes  and  regulations  which  authorize  the  sale  of 
subsistence  supplies  to  "  officers  and  enlisted  men  "  may  properly  be 
given  a  liberal  application  so  as  to  include  Army  field  clerks  provided 
for  by  the  act  of  August  29,  1916  (39  Stat.  625),  inasmuch  as  Army 
field  clerks  are  officers  with  a  regular  military  status,  although  not 
commissioned  officers ;  but  as  to  the  clerks  temporarily  employed  and 
designated  "  acting  Army  field  clerks,"  these  are  merely  civilian  em- 
ployees and  have  no  status  as  officers  within  the  purview  of  the  stat- 
utes relating  to  the  sale  of  subsistence  supplies  to  officers  and  enlisted 
men  of  the  Army.  Such  acting  Army  field  clerks  may  purchase  sub- 
sistence supplies  from  the  Quartermaster's  Department  only  as  civil- 
ians, under  Army  Regulations  1245. 

Ops.  J.  A.  G.  80-131,  June  14,  1917. 

INSANE  OF  ARMY:   Appropriation  for  care. 

On  the  question  submitted  as  to  whether  the  Surgeon  General  is 
authorized  to  make  arrangements  with  private  institutions  for  the 
care  of  insane  still  in  the  military  service  under  the  appropriations 
"  Medical  and  Hospital  Department,"  containing  an  item  "  for  medi- 
cal care  and  treatment  not  otherwise  provided  for,  including  care 
and  subsistence  in  private  hospitals,  of  officers  and  enlisted  men, 
when  entitled  thereto  by  law,  regulation,  or  contract,"  it  being  stated 
that  the  Government  Hospital  for  the  Insane  is  "  taxed  to  its  utmost 
capacity ;"  that  the  patients  contemplated  to  be  treated  in  private 
hospitals  are  those  who  will  suffer  temporary  mental  aberrations  due 
to  the  incidents  of  trench  warfare;  that  under  proper  conditions, 
if  treated  in  psychopathic  institutions  where  they  can  have  the  bene- 
fit of  the  special  provisions  therein  made  for  the  mentally  deranged, 
they  will  be  wholly  restored  to  normal  and  to  a  duty  status  after  a 
brief  period  of  treatment;  and  that  it  is  the  purpose  to  send  to  the 
Government  Hospital  for  the  Insane  those  whose  insanity  turns  out 
to  be  of  a  more  permanent  nature. 

Held,  that  the  appropriation  referred  to  is  broad  enough  to  au- 
thorize arrangements  for  the  treatment  of  insane  officers  and  enlisted 
men  of  the  Army  who,  because  of  the  limited  facilities  of  the  Gov- 
ernment Hospital  for  the  Insane,  can  not  properly  be  treated  there ; 
and  that  there  is  no  legal  objection  to  making  arrangements  as  pro- 
posed for  the  treatment  in  private  institutions  of  those  temporarily 
deranged  because  of  the  conditions  of  service,  such  action  being  based 
on  the  inadequate  facilities  of  the  Government  Hospital  for  the 
Insane  to  care  for  these  patients. 

Ops.  J.  A.  G.  44-200,  June  6,  1917. 


DECISIONS  OF  THE  COMPTEOLLER  OF  THE  TREASURY. 

CIVILIAN  EMPLOYEES:   Five  and  10  per  cent  increase  in  compensation. 

The  provision  for  a  5  and  10  per  cent  increase  of  pay  to  civilian 
employees  of  the  Military  Establishment,  during  the  fiscal  year  1918, 
reads: 

"That  during  the  fiscal  year  nineteen  hundred  and  eighteen,  all 
civilian  employees  in  the  Military  Establishment,  including  on  the 


DIGEST  OP  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ABMY.        33 

lump-sum  rolls  only  those  persons  who  are  carried  thereon  at  the 
close  of  the  fiscal  year  ending  June  thirtieth,  nineteen  hundred  and 
seventeen,  shall  receive  increased  compensation  at  the  rate  of  10  per 
centum  per  annum  to  such  employees  who  receive  salaries  or  wages 
in  such  establishment  at  a  rate  per  annum  of  less  than  $1,200,  and 
increased  compensation  at  a  rate  of  five  per  centum  per  annum  to 
such  employees  who  receive  salaries  or  wages  in  such  establishment 
at  a  rate  of  not  more  than  $1,800  per  annum  and  not  less  than  $1,200 
per  annum." 

With  reference  to  a  similar  provision  affecting  the  Naval  Estab- 
lishment, the  following  questions  relating  to  per  diem  employees 
were  presented : 

{a)  Shall  extra  pay  earned  by  overtime  work  be  disregarded  in 
computing  5  and  10  per  cent  increase  of  compensation,  the  increase 
being  deteruiined  by  crediting  each  eligible  employee  with  5  or  10 
per  cent,  as  the  case  may  be,  of  his  regular  per  diem  rate  for  each  day 
Avorked  ? 

(b)  If  the  increase  of  compensation  is  to  be  based  upon  the  total 
pay  received,  including  overtime  work,  shall  the  amount  of  pay  re- 
ceived by  any  employee  during  a  pay  period  be  considered  as  bearing 
the  same  proportion  to  his  annual  pay  as  the  nuniber  of  days  worked 
in  such  pay  period  bears  to  the  number  of  working  days  per  year  ? 

Held  as  follows : 

"  Under  the  provision  of  this  law  the  rate  and  not  the  amount  of 
compensation  is  made  the  determining  factor  as  to  whether  or  at 
what  rate  the  increase  is  to  be  paid,  and  a  per  annum  rate  is  made  the 
basis. 

"A  salary  at  the  rate  of  $1,200  per  annum  is  equivalent  to  $100  per 
month  and  $3.33^  per  day,  and  a  salary  at  the  rate  of  $1,800  per 
annum  is  equivalent  to  $150  per  month  and  $5  per  day.  Therefore,  in 
determining  a  per  diem  employee's  right  to  the  increase  it  is  these 
per  diem  rates  that  are  to  be  considered  and  not  the  amount  of  an- 
nual compensation  that  he  may  receive  at  the  rate  paid  to  him. 

"  The  number  of  days  he  may  work  during  the  year  and  the 
overtime  work  do  not  affect  the  question. 

"  If  a  per  diem  employee  of  the  class  referred  to  in  the  above- 
quoted  law  receives  compensation  at  a  rate  less  than  $3.33^  per 
day,  he  will  be  entitled  to  the  10  per  cent  increase;  for  instance,  if 
his  rate  of  compensation  is  $3.30  per  day,  he  will  be  entitled  to  an 
increase  of  33  cents  for  each  day's  work  performed,  regardless  of 
whether  he  may  work  365  days  or  only  200  days  during  the  year; 
likewise,  if  his  rate  of  compensation  is  not  less  than  $3.33J  per  day 
and  not  more  than  $5  per  day,  he  will  be  entitled  to  the  5  per  cent 
increase ;  and  if  his  rate  of  compensation  is  more  than  $5  per  day  he 
will  not  be  entitled  to  any  increase,  even  though  the  total  compensa- 
tion received  by  him  during  the  year  does  not  exceed  $1,800. 

"  The  increase  will  be  allowed  on  overtime  work  as  well  as  on 
regular  work,  provided  the  rate  paid  for  overtime  work  on  an 
eight-hour  basis  is  not  more  than  $5  per  day." 

Comp.  Treas.  May  26,  1917. 

In  another  case  the  question  was  presented  whether  pieceworkers 
are  entitled  to  the  benefits  of  the  said  act,  and,  if  so,  upon  what  basis 
the  percentage  of  increase  should  be  computed. 

151738—20 3 


34        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

Held^  that  pieceworkers  are  to  be  classed  as  being  paid  wages 
and  that  the  provision  for  increased  compensation  is  applicable  to 
them  upon  the  following  basis: 

"Payment  is  made  for  piecework  after  the  doing  of  it,  but  the 
value  of  the  labor  in  the  doing  of  it  is  ascertained  approximately 
and  the  compensation  fixed  for  it  before  the  doing  of  it.  In  fixing 
the  compensation  for  the  labor,  certain  elements  must  have  been 
considered,  and  they  become  the  basis  of  the  compensation,  among 
them  being  the  quantity  the  average  employee  could  do  in  a  given 
period.  On  this  basis  a  rate  of  compensation  per  day  may  be 
ascertained. 

"  It  is  understood  that  eight  hours  constitute  a  workday  for  these 
employees.  If  so,  the  amount  of  compensation  earned  during  said 
period  at  the  established  piece  rates  is  the  rate  of  pay  for  the  day. 
This  rate  forms  the  basis  of  computing  the  percentage  increases. 
If  it  is  less  than  $3.33-J,  the  increase  will  be  at  the  rate  of  10  per 
cent;  if  it  is  not  less  than  $3.33^  and  not  more  than  $5,  the  increase 
will  be  at  the  rate  of  5  per  cent;  and  if  it  is  more  than  $5,  no  per- 
centage increase  will  be  paid." 

Comp.  Treas.  May  28,  1917. 

LEASE  OF  LANDS:   Payment  of  rent  in  advance. 

A  lease  of  a  tract  of  land  by  the  Signal  Corps  for  aviation  pur- 
poses provided  for  payment  of  the  rent  in  advance.  The  question 
was  raised  whether  advance  payment  was  not  in  violation  of  section 
3648,  Kevised  Statutes,  which  prohibits  the  advance  of  public  money 
"  in  any  case  whatever."  In  12  Comp.  Dec.  782,  it  was  held,  in  sub- 
stance, that  in  the  matter  of  naked  lands  leased  to  the  Government, 
where  the  leased  lands  have  been  placed  in  the  possession  of  the  Gov- 
ernment by  the  lessor,  the  Government  has  obtained  all  it  contracts 
for  under  the  lease,  and  hence  a  payment  of  rental  at  such  time  is 
not  a  payment  in  violation  of  section  3648,  Revised  Statutes.  Upon 
reconsideration  of  this  question, 

Held^  that  in  the  case  of  naked  lands  leased  by  the  Government 
it  would  seem  that  the  purpose  and  spirit,  if  not  the  plain  letter^ 
of  the  law  are  against  payment  of  the  rent  in  advance,  and  that 
therefore  the  decision  in  12  Comp.  Dec,  782,  is  modified  so  that  here- 
after "payment  of  rent  in  advance  by  the  month,  year,  or  quarter 
for  naked  lands  leased  to  the  Government  will  not  be  recognized  by 
the  accounting  officers." 

Comp.  Treas.  May  23,  1917. 

NATIONAL  GUARD :   Pay  of  enlisted  men  refusing  to  take  Federal  oath. 

Where  an  enlisted  man  of  the  Organized  Militia  called  out  in  the 
national  defense  refused  to  take  the  Federal  enlistment  oath  pre- 
scribed in  the  act  of  June  3, 1916,  or  to  be  formally  mustered  into  the 
Federal  service,  but  who  was  treated  in  all  respects  as  a  member  of 
the  organization  in  that  service  and  was  required  to  perform  all  the 
duties  of  a  soldier  from  the  date  of  his  enlistment  to  the  date  of  his 
muster  out, 

Held^  that  he  was  entitled  to  pay  as  a  member  of  the  organization 
during  the  period  referred  to. 

Comp.  Treas.  May  12,  1917. 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ABMY.         35 

PAY  OF  ENLISTED  MEN:  Foreign-service  increase. 

The  question  was  presented  whether  in  the  case  of  enlisted  men  the 
20  per  cent  increase  for  forei^  service  provided  for  by  the  act  of 
June  30,  1902  (32  Stat.  512),  is  to  be  computed  on  the  monthly  in- 
crease of  pay  authorized  by  the  act  of  May  18,  1917.  The  ac  t  of  1902 
authorizes  the  payment  to  enlisted  men  of  20  per  cent  increase  for 
foreign  service,  such  increase  to  be  "  over  and  albove  the  rates  of  pay 
proper  as  fixed  by  law  for  time  of  peace  "/  and  the  act  of  May  18, 
1917,  provides  that  the  monthly  inci'eases  therein  authorized  are  to 
continue  only  until  the  terrrdnation  of  the  emergency. 

Held.,  that  as  the  rates  of  pay  "  as  fixed  by  law  for  time  of  peace  " 
do  not  include  monthly  increases  provided  for  by  the  act  of  May  18. 
1917,  which  are  war  increases,  such  monthly  increases  can  not  enter 
into  the  computation  of  the  20  per  cent  increase  provided  for  foreign 
service. 

Comp.  Treas.  May  29,  1917. 

PRIVATE  PROPERTY :   Claim  for  loss  in  military  service. 

In  connection  with  a  recent  claim  of  an  officer  of  the  Army  for  the 
loss  of  private  property  in  the  military  service  the  Comptroller  of 
the  Treasury  placed  upon  the  act  of  March  3,  1885  (23  Stat.  350), 
a  construction  which  materially  restricts  the  operation  of  the  act 
in  comparison  with  the  practice  under  decisions  heretofore  in  effect. 
The  act  provides  for  the  settlement  under  conditions  therein  pre- 
scribed for  the  loss,  "  except  in  time  of  war  or  hostilities  with  In- 
dians," of  private  property  of  officers  and  enlisted  men  under  the 
following  circumstances : 

''  First.  When  such  loss  or  destruction  was  without  fault  or  negli- 
gence on  the  part  of  the  claimant. 

"  Second.  Where  the  private  property .  so  lost  or  destroyed  was 
shipped  on  board  an  unseaworthy  vessel  by  order  of  any  officer 
authorized  to  give  such  order  or  direct  such  shipment. 

"  Third.  Where  it  appears  that  the  loss  or  destruction  of  the  pri- 
vate property  of  the  claimant  Avas  in  consequence  of  his  having 
given  his  attention  to  the  saving  of  the  property  belonging  to  the 
United  States  which  was  in  danger  at  the  same  time  and  under  simi- 
lar circumstances." 

Held^  by  the  comptroller,  that  when  a  claim  of  an  officer  or  en- 
listed man  of  the  Army  for  the  value  of  his  private  property  lost 
or  destroyed  in  the  military  service  is  presented  within  two  years 
from  the  occurrence  of  the  loss  or  destruction,  and  it  appears  that 
the  loss  or  destruction  was  not  "  sustained  in  time  of  war  or  hostili- 
ties with  Indians,"  and  "  was  without  fault  or  negligence  on  the  part 
of  the  claimant,"  said  act  of  March  3,  1885,  provides  for  payment 
under  two  and  only  two  circumstances,  namely : 

1.  "  Where  the  private  property  so  lost  or  destroyed  was  shipped 
on  board  an  unseaworthy  vessel  by  order  of  an  officer  authorized 
to  give  such  order  or  direct  shipment. 

2.  "  Where  it  appears  that  the  loss  or  destruction  of  the  private 
property  of  the  claimant  was  in  consequence  of  his  having  given 
his  attention  to  the  saving  of  the  property  belonging  to  the  United 
States  which  was  in  danger  at  the  same  time  and  under  similar  cir- 
cumstances." 


36        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

This  construction  is  a  return  to  an  early  construction  of  the  act 
announced  by  the  Second  Comptroller  of  the  Treasury  under  date 
of  November  8,  1893,  and  is  based  upon  an  examination  by  the  comp- 
troller of  the  legislative  history  of  the  statute  which  was  resorted  to 
in  view  of  the  ambiguity  of  the  statute,  as  evidenced  "by  the  fact 
that  the  comptrollers  who  held  oiRce  for  30  years  after  the  law  passed 
reached  many  different  conclusions  as  to  its  meaning." 

Comp.  Treas.  May  7,  1917. 

TRANSPORTATION:   Oflacers'  baggage  allowances. 

Where  a  captain  of  the  Philippine  Scouts  was  retired  with  the 
pay  and  allowances  of  a  master  signal  electrician  of  the  Army,  as 
provided  by  section  26  of  the  national- defense  act  of  June  3,  1916: 

Held^  that  he  was  entitled  to  the  transportation,  from  his  last  duty 
station  to  his  home,  of  the  baggage  allowance  of  a  captain,  as  pro- 
vided by  Army  Kegulations  1136  and  1137. 

Comp.  Treas.  June  6,  1917. 


BULLETIN  49. 

OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

CAMPAIGN  BADGES :  Issue  of,  to  members  of  training  camps. 

A  candidate  for  a  commission  while  serving  in  the  reserve  officers' 
training  camp  applied  for  a  campaign  badge  for  service  rendered 
during  the  Philippine  insurrection.  Upon  the  question  whether 
members  of  training  canij)s  are  in  the  military  service  in  such  man- 
ner as  would  justify  the  issuance  of  campaign  badges, 

Ileld^  that  since  members  of  training  camps  are  enlisted  in  the 
service  of  the  United  States,  though  only  for  a  term  of  three  months, 
they  are  members  of  the  military  force  of  the  United  States,  and 
that  campaign  badgei?,  being  authorized  as  a  part  of  the  uniform, 
could  properly  be  issued  to  them  as  a  part  of  the  uniform  which  they 
are  entitled  to  wear  in  the  service  of  the  United  States. 

Ops.  J.  A.  G.  46-321,  June  30,  1917. 

CLAIMS  FOR  PRIVATE  PROPERTY :   Commencement  of  war. 

Upon  the  question  raised  as  to  the  "  date  of  commencement  of  the 
present  war  "  with  reference  to  the  action  which  should  be  taken  on 
claims  of  officers  and  enlisted  men  for  property  destroyed  in  the 
military  service  under  the  act  of  Congress  approved  March  3,  1885, 
providing  that  the  act  "  shall  not  apply  to  losses  sustained  in  time 
of  war  or  hostilities  with  Indians," 

Held^  that  the  date  of  the  commencement  of  the  present  war  should 
be  regarded  as  the  date  of  approval  of  the  joint  resolution  of  Con- 
gress of  April  6,  1917  (Pub.  No.  1,  65th  Cong.),  formally  declaring 
a  state  of  war  as  existing  between  the  United  States  and  the  Imperial 
German  Government. 

Ops.  J.  A.  G.  18-461,  June  30,  1917. 

CONTRACTORS:  Relief  on  the  ground  of  hardship. 

The  question  was  submitted  as  to  whether  or  not  the  decision  of 
the  comptroller,  dated  May  24,  1917,  construing  the  contract  of  F. 
H.  Leggett  &  Co.  for  the  delivery  of  flour  to  the  Marine  Barracks, 
Port  Royal,  S.  C,  is  applicable  to  similar  contracts  of  the  Quarter- 
master Corps  for  fuel,  forage,  etc.  The  decision  of  the  comptroller, 
after  citing  the  provisions  of  the  contract  requiring  the  contractor 
to  furnish,  at  the  stipulated  price,  such  quantities  of  flour  "«5  m<iy 
he  required?'^  during  the  period  specified,  and  showing  that  the  esti- 
mated quantity  was  based  simply  on  "normal  conditions,"  and  that 
it  was  contemplated  that  the  "quantity  stated  will  be  increased  or  di- 
minished as  the  necessities  *  *  *  may  demand,"  held  that  the  fact 
that  the  market  price  of  flour  has  materially  advanced,  and  that  the 
quantity  of  flour  required  to  meet  the  needs  of  the  service  is  largely 
in  excess  of  that  required  binder  normal  peace  conditions,  do  not 
furnish  any  legal  basis  for  relieving  the  contractor  of  his  obliga- 
tion to  furnish  all  the  flour  required  at  that  post.  The  decision  of 
the  comptroller  is  in  line  with  the  decision  of  the  Court  of  Claims  in 

37 


38        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENEEAL  OF  ARMY. 

the  case  of  Garstens  Packing  Go.  v.  United  States^  decided  May  28, 
1917,  a  digest  of  which  decision  appears  on  page  17  of  Bulletin  34, 
dated  June  8,  1917  (ante  p.  25).    Upon  the  question  submitted. 

Held^  that  the  decision  of  the  comptroller  and  the  decision  of 
the  Court  of  Claims  in  the  cases  referred  to  above  should  be  applied 
by  disbursing  officers  to  contracts  of  the  Quartermaster  Corps  for 
fuel,  forage,  etc.,  where  the  terms  are  substantially  the  same  and 
the  circumstances  are  similar;  and  that  if  the  facts  and  circum- 
stances of  the  particular  case  appear  to  make  these  decisions  inap- 
plicable, the  matter  should  be  submitted  to  the  department  for  con- 
sideration. 

Ops.  J.  A.  G.  76-700,  July  13,  1917. 

ENLISTMENTS :   Continued  in  force  during-  war. 

Upon  questions  {a)  whether  soldiers  could  legally  be  discharged 
by  reason  of  expiration  of  term  of  enlistment  subsequent  to  the 
passage  of  the  act  of  May  18,  1917,  and  (b)  whether  that  act  was 
effective  to  continue  in  force  enlistments  in  the  National  Guard, 

Held^  that  question  {a)  must  be  answered  in  the  negative  since 
the  provision  contained  in  section  7  of  the  act  of  May  18,  1917, 
reading : 

"All  enlistments,  including  those  in  the  Regular  Army  Reserve, 
which  are  in  force  on  the  date  of  the  approval  of  this  act  and  which 
would  terminate  during  the  emergency,  shall  continue  in  force  dur- 
ing the  emergency  unless  sooner  discharged;  but  nothing  herein 
contained  shall  be  construed  to  shorten  the  period  of  any  existing 
enlistment." 

is  an  inhibition  against  discharges  unless  ordered  by  the  Secretary 
of  War  under  his  general  power  to  grant  discharges  in  the  interest 
of  the  Government,  and  since  the  soldier's  enlistment  is  prolonged 
for  the  period  of  the  emergency  by  the  provision  quoted,  a  dis- 
charge for  the  purpose  of  immediate  enlistment  would  involve  ad- 
ministrative labor  and  a  multiplication  of  records  without  any 
resultant  benefit  to  the  Government. 

Held  further  as  to  question  (&),  that  since  the  provision  quoted 
is  applicable  to  "  all  enlistments,"  it  is  applicable  to  enlistments 
in  the  National  Guard,,  they  being  enlistments  in  the  National  Guard 
of  the  United  States  as  well  as  the  National  Guard  of  a  State ;  and 
the  question  is  answered  in  the  affirmative. 

Ops.  J.  A.  G.  28-240,  June  2, 18, 1917. 

NATIONAL  GUARD:   De  facto  property  and  disbursing  officer. 

In  the  case  of  an  administrative  staff  officer  who,  not  being  an 
officer  of  the  National  Guard,  was  ineligible  for  appointment  as 
property  and  disbursing  officer  under  section  67,  national-defense 
act  of  June  3,  1916,  upon  his  application  for  action  by  way  of  con- 
firmation of  his  official  act  as  property  and  disbursing  officer, 

Held^  that  no  confirmation  in  his  case  would  be  required ;  that  the 
acts  of  the  officer  as  the  de  facto  incumbent  of  the  office  must  be  re- 
garded as  valid  (29  Cyc.  1389,  etc.;  8th  A.  and  E.  Encyc.  of  Law, 
806)  and  that  as  there  was  no  de  June  claimant  to  the  office  for  the 
time  under  consideration,  the  officer  would  be  entitled  to  retain  the 
salarv  paid  to  him  while  the  de  facto  incumbent  of  the  office. 

Ops.  J.  A.  G.  58-213,  June  28,  1917. 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.        39 

NATIONAL  GUARD:   Final  statements. 

In  the  case  of  an  enlisted  man  of  the  Texas  engineers  who,  without 
a  discharge  from  that  organization  but  prior  to  the  muster  into  the 
Federal  service  of  that  organization,  enlisted  in  the  National  Guard 
of  another  State,  and  after  his  arrival  in  Texas  was  apprehended, 
tried,  and  sentenced  for  fraudulent  enlistment,  and  subsequently  was 
released  on  probation  and  furnished  transportation  to  his  home  in 
Texas;  on  the  question  as  to  the  date  from  which  final  statements 
should  be  made  out  for  the  Texas  organization, 

Held^  that  the  date  he  was  apprehended  and  taken  into  military 
custody— November  16,  1916 — should  be  the  date  from  which  he 
should  be  given  final  statements  with  respect  to  his  service  in  the 
Texas  organization. 

Ops.  J.  A.  G.  72-200,  July  10,  1917. 

NATIONAL  GUARD:   Reenlistments  of  noncommissioned  oflacers. 

In  the  case  of  a  corporal  of  a  National  Guard  organization  who, 
with  others,  was  mustered  out  of  the  Federal  service  April  13,  1917, 
because  of  refusal  to  subscribe  to  the  oath  prescribed  by  the  national- 
defense  act  of  June  3,  1916,  and  who  applied  June  5,  1917,  for  reen- 
listment,  and  upon  signing  the  dual  oath  was  restored  to  duty;  on 
the  question  whether  he  should  be  carried  as  and  receive  the  pay  of  a 
corporal  or  a  private,  it  being  stated  that  the  company  has  its  full 
complement  of  noncommissioned  officers,  appointed  since  the  muster 
out  of  a  portion  of  the  company, 

Held^  that  he  is  to  be  regarded  as  having  reenlisted  June  5,  1917, 
and  that,  as  there  is  no  vacancy  in  his  company  as  corporal,  he  must 
be  carried  as  and  receive  the  pay  of  a  private. 

Ops.  6-151.1,  June  23,  1917. 

OFFICERS:   Transfer  under  provisions  of  section  25  of  the  national-de- 
fense act. 

Upon  the  question  whether  an  officer  transferred  to  another  arm 
under  the  provisions  of  section  25  of  the  national-defense  act  subse- 
quent to  May  15,  1917,  would  be  given  a  place  on  the  lineal  list  of 
that  arm  determined  by  his  relative  rank  on  the  passage  of  the  bill 
June  3,  1916,  or  determined  by  his  relative  rank  at  the  date  of  his 
actual  transfer, 

Held^  that  the  purpose  of  the  fifth  proviso  of  section  25  of  the 
national-defense  act,  reading: 

"  That  for  the  purpose  of  lessening  as  much  as  possible  inequalities 
of  promotion  due  to  the  increase  in  the  number  of  officers  of  the  line 
of  the  Army  under  the  provisions  of  this  act,  any  vacancies  created 
or  caused  by  this  act  in  commissioned  grades  below  that  of  lieutenant 
colonel  in  any  arm  of  said  line  may,  in  the  discretion  of  the  Presi- 
dent and  under  such  regulations  as  he  may  prescribe  in  furtherance 
of  the  purpose  stated  in  this  proviso,  be  filled  by  the  promotion  or 
transfer  without  promotion  of  officers  of  other  branches  of  the  line 
of  the  Army ;     *     *     *  » 

is  limited  to  lessening  inequalities  of  promotion  due  to  the  increase 
in  the  number  of  officers  of  the  line  of  the  Army  under  the  provisions 
of  the  national-defense  act;  that  the  only  inequalities  of  promotion 
which  could  result  from  the  addition  of  officers  would  be  inequali- 


40        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

ties  between  arms,  and  not  inequalities  between  individuals  within 
either  of  the  arms;  that  the  purpose  of  the  statute,  therefore,  is  to 
authorize  transfer  from  the  arm  receiving  the  smaller  increase  to 
the  arm  receiving  the  larger  increase,  thus  increasing  the  promotion 
in  one  arm  and  at  the  same  time  decreasing  it  in  the  other,  and  so 
producing  an  equality  or  a  nearer  approach  thereto.  Therefore,  the 
statute  does  not  address  itself  to  equalizing  or  benefiting  the  persons 
transferred.  Equity  dictates,  however,  that  the  regulations  made 
by  the  President  for  such  transfer  shall  be  equity  to  officers  trans- 
ferred. This  has  been  done  by  prescribing  that  the  officer  transferred 
shall  retain  his  relative  rank  at  the  date  of  the  transfer.  The  in- 
creases authorized  by  the  national-defense  act  were  by  the  act  itself 
divided  into  increments,  and  it  is  but  a  logical  conclusion  that  each 
increment  should  constitute  a  separate  and  distinct  addition  to  the 
Regular  Army,  except  when  two  or  more  are  added  at  the  same  time 
as  has  been  those  on  May  15,  1917.  When  the  first  increment  was 
added,  certain  vacancies  which  were  thereby  caused  or  created  on  July 
1,  1916,  Avere  reserved  for  officers  who  were  to  be  transferred  when 
their  eligibility  should  be  determined.  There  was,  therefore,  nothing 
in  the  way  of  assigning  to  those  officers  when  transferred  constructive 
dates  of  transfer  corresponding  with  the  vacancies  which  existed  on 
the  dates  constructively  adopted  and  were  reserved  for  those  officers. 
All  vacancies  to  which  transfers  might  be  made  which  were  created 
or  caused  by  the  first  increment  have  now  been  filled,  and  there  are 
therefore  no  vacancies  created  or  caused  by  that  increment  to  which 
the  transfer  of  an  officer  can  relate  back  in  fixing  a  constructive  date 
of  transfer.  Therefore,  officers  now  transferred  to  another  arm  under 
the  proviso  quoted  must  take  the  relative  rank  which  they  had  when 
the  vacancies  to  which  they  are  transferred  occurred,  there  being  no 
authority  of  law  for  disturbing,  in  order  to  benefit  officers  transferred 
to  vacancies  created  by  other  increments,  the  relative  rank  established 
by  the  completion  of  the  first  increment.  A  disturbance  of  the  rela- 
tive rank  established  by  the  completion  of  the  first  increment  would 
not  lessen  the  inequalities  of  promotion  due  to  the  increase  in  the 
number  of  officers  of  the  line  of  the  Army  as  defined  above,  and 
therefore  would  not  come  within  the  purpose  or  authority  of  the 
national -defense  act. 

Ops.  J.  A.  G.  82-200,  May  23,  1917. 

RATION  SAVINGS:  Expenditure  of. 

A  detachment  of  soldiers  kept  a  cow  for  the  production  of  milk  for 
the  detachment  mess,  and  the  question  w^as  presented  whether  it  was 
legal  to  purchase  feed  for  the  cow  from  the  ration  savings  in  view 
of  the  requirement  of  paragraph  1220,  Army  Kegulations,  that  "  such 
savings  shall  be  used  solely  for  the  purchase  of  articles  of  food." 

Held^  that  the  purpose  of  the  regulation  being  simply  to  require 
that  funds  appropriated  by  Congress  for  the  subsistence  of  soldiers 
shall  be  used  for  no.  other  purpose,  either  directly  or  indirectly,  the 
expenditure  of  ration  savings  for  feed  for  the  cow  under  the  circum- 
stances would  not  be  in  violation  of  the  regulation,  such  expenditure 
resulting  in  the  procurement  of  milk  for  the  soldiers. 

Ops.  J.  A.  G.  40-211,  June  30, 1917. 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.        41 

RESERVE  OFFICERS'  TRAINING  CORPS:    Commutation  of  subsistence. 

Upon  the  question  as  to  whetlier  in  case  the  exigencies  of  the  serv- 
ice require  the  relief  of  the  professor  of  military  science  and  tactics 
at  an  institution  at  which  one  or  more  units  of  the  senior  division  of 
the  Reserve  Officers'  Training  Corps  have  been  established,  leaving 
on  duty  only  enlisted  men  detailed  under  section  46  of  the  national- 
defense  act,  in  the  absence  of  a  commissioned  officer  can  the  "  mili- 
tary training  prescribed  by  the  Secretary  of  War  "  imder  section  50 
of  the  national  defense  act  of  June  3,  1916,  })e  so  carried  on  as  to 
entitle  the  members  of  the  senior  division  at  the  institution,  who  have 
complied  with  all  requireAcnts  so  far  as  they  are  concerned  to  be  paid 
the  commutation  of  subsistence  provided  by  said  section  50. 

Held^  that  the  presence  of  an  officer  of  the  Army,  active  or  retired, 
as  professor  of  military  science  and  tactics  is  a  condition  for  the 
maintenance  of  a  unit  of  the  training  corps  under  instruction  at  the 
particular  institution;  and  that,  in  the  absence  of  such  instruction, 
the  "  military  training  prescribed  by  the  Secretary  of  War,"  as  con- 
templated by  the  national  defense  act,  can  not  be  carried  on  so  as  to 
entitle  the  members  of  the  senior  division  of  such  training  corps  to 
be  paid  the  commutation  of  subsistence  provided  by  section  50  of 
said  act. 

Ops.  J.  A.  G.  56-400,  July  2, 1917. 

VETERINARY  SURGEONS:   Age  qualifications  for  appointment. 

The  question  was  presented  whether  the  provision  of  the  act  of 
May  12,  1917  (Army  appropriation  act),  amending  section  24  of  the 
national-defense  act,  so  as  to  provide  new  age  limits  for  appointments 
to  the  grade  of  second  lieutenant,  affected  the  eligibility  for  appoint- 
ment as  assistant  veterinarians  under  section  16  of  the  national- 
defense  act. 

Held^  that,  since  the  provision  of  section  16  of  the  national-defense 
act  governing  the  eligibility  of  persons  for  appointment  as  assistant 
veterinarians  is  not  dependent  upon  or  affected  by  the  provisions 
governing  the  eligibility  for  appoiritment  as  second  lieutenant  found 
in  section  24  of  that  act,  the  amendment  of  section  24  by  the  act  of 
May  12,  1917,  does  not  affect  the  provision  relative  to  appointments 
as  assistant  veterinarians  found  in  section  16  of  the  national  defense 
act. 

Ops.  J.  A.  G.  64-261,  June  23, 1917. 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 
CIVILIAN  EMPLOYEES :   Compensation. 

With  reference  to  the  provisions  in  the  various  annual  appropri- 
ation acts  for  the  fiscal  years  1918  for  5  and  10  per  cent  increases 
in  compensation  of  civilian  employees, 

Ueld^  that  persons  employed  by  the  Government  from  day  to  day, 
or  to  do  a  particular  job,  or  whose  compensation  is  not  fixed  by  law 
or  regulation,  but  by  agreement  at  the  time  when  the  services  are 
engaged,  are  not  entitled  to  the  percentage  increases  of  compensa- 
tion under  the  statutes  referred  to,  such  persons  not  being  employees 
of  the  United  States  Avithin  the  meaning  of  such  statutes. 

Comp.  Treas.  June  28,  1917. 


42        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

CIVILIAN"  EMPLOYEES:   Medical  and  hospital  treatment. 

Section  9  of  the  injured-employees'  compensation  act  of  Septem- 
ber 7,  1916  (39  Stat.  743),  provides: 

"  That  immediately  after  an  injury  sustained  by  an  employee  while 
in  the  performance  of  his  duty,  whether  or  not  disability  has  arisen, 
and  for  a  reasonable  time  thereafter,  the  United  States  shall  furnish 
to  such  employee  reasonable  medical,  surgical,  and  hospital  services 
and  supplies  unless  he  refuses  to  accept  them.  Such  services  and 
supplies  shall  be  furnished  by  the  United  States  medical  officers  and 
hospitals,  but  where  this  is  not  practicable  shall  be  furnished  by  pri- 
vate physicians  and  hospitals  designated  or  approved  by  the  com- 
mission and  paid  for  from  the  employees'  compensation  fund.  If 
necessary  for  the  securing  of  proper  medical,  surgical,  and  hospital 
treatment,  the  employee,  in  the  discretion  of  the  commission,  may 
be  furnished  transportation  at  the  expense  of  the  employees'  compen- 
sation fund." 

Held^  that  under  this  act  United  States  hospitals  and  facilities  are 
free  to  injured  employees  of  any  department  of  the  Government,  and 
that  the  appropriations  for  the  various  executive  departments  or 
other  Government  establishments  or  services  mav  not  lawfully  be 
reimbursed  from  the  compensation  fund  provided  for  injured  Gov- 
ernment employees  for  the  cost  of  medical  or  hospital  treatment  of 
such  employees  unless  such  treatment  was  furnished  by  private 
physicians  or  hospitals  at  the  cost  of  the  executive  department,  es- 
tablishment, or  service  seeking  reimbursement. 

Comp.  Treas.  June  27,  1917. 

CIVILIAN   EMPLOYEES:   Pay  while    attending   reserve    officers'   training 
camps. 

II eld ^  that  an  employee  of  the  United  States  on  leave  of  absence 
and  attending  an  officers'  training  camp  as  a  candidate  for  a  com- 
mission in  the  Officers'  Eeserve  Corps  of  the  Army  may  not  lawfully 
receive  his  regular  compensation  as  a  civilian  employee  for  such 
period  in  addition  to  pay  as  such  candidate  when  the  annual  rate  of 
the  combined  compensation  so  received  exceeds  $2,000,  in  view  of 
the  act  of  August  29,  1916  (39  Stat.  582),  amending  section  6,  act 
of  May  10,  1916;  and  further^  that  he  can  not  elect  to  refuse  his 
military  pay  in  order  to  accept  the  pay  of  his  civil  position. 

Comp.  Treas.  June  25,  1917. 

FIELD  CLERKS :   Compensation. 

The  question  was  presented  whether  Army  field  clerks  and  field 
clerks,  Quartermaster  Corps,  are  entitled  to  the  benefits  of  the  pro- 
vision in  the  Army  appropriation  act,  approved  May  12,  1917,  for  5 
and  10  per  cent  increases  in  the  compensation  of  "all  civilian  em- 
ployees in  the  Military  Establishment." 

Held^  that  Army  field  clerks  and  field  clerks,  Quartermaster  Corps, 
not  being  regarded  as  ciAdlian  employees,  they  are  not  entitled  to  the 
benefits  of  the  statute  mentioned. 

Comp.  Treas.  June  14  and  27,  1917. 

OFFICERS'  RESERVE  CORPS:   Mileage. 

Uponihe  question  whether  officers  of  the  Officers'  Eeserve  Corps 
of  the  Army  are  entitled  to  mileage  for  travel  in  joining  their  first 
duty  station  under  War  Department  orders, 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ABMY.        43 

Held^  that  the  provision  in  section  38,  national  defense  act  of  June 
3, 1916,  that  members  of  the  Officers'  Reserve  Corps  "  shall  be  entitled 
to  the  pay  and  allowances  of  the  corresponding  grades  in  the  Regular 
Army  *  *  *  from  the  date  upon  which  they  shall  be  required  by 
the  terms  of  their  orders  to  obey  the  same,'^  clearly  entitles  such 
officers  to  mileage  for  the  travel  performed,  mileage  being  an  allow- 
ance. 

Comp.  Treas.  June  6,  1917. 

BETIRED  OFFICERS:   Longevity  increases  for  active  duty. 

The  act  of  May  12, 1917  (Pub.  No.  11,  p.  10) ,  provides : 

"That  hereafter  any  retired  officer  of  the  Army  who  has  been 
detailed  to  active  duty,  and  who  has  since  his  retirement  sers^ed  on 
active  detail,  shall  be  entitled  to  increases  of  longevity  pay  to  be 
computed  as  provided  by  existing  statute  for  the  computation  of 
longevity  pay,  for  the  time  of  his  service  before  retirement  and  on 
active  detail  since  his  retirement." 

Held^  that  under  this  legislation,  which  is  to  be  read  in  connection 
with  the  last  proviso  of  section  24,  national  defense  act  of  June  3, 
1916,  retired  officers  coming  within  its  operation  are  entitled  to 
increases  of  longevity  pay,  on  account  of  active  service  rendered  since 
retirement,  not  only  while  on  such  active  duty  but  also  after  they 
have  been  relieved  from  such  duty. 

Held  fy/rther^  that  the  act  in  question  deals  also  with  allowance 
of  longevity  credit  for  all  active  service  rendered  by  such  officers 
since  retirement,  including  any  such  service  rendered  before  the 
passage  of  the  act  of  May  12,  1917. 

Comp.  Treas.  June  7,  1917. 

TRAVEL  PAY :   Enlisted  man  discharged  with  view  to  acceptance  of  com- 
mission. 

An  enlisted  man  of  the  National  Guard  was  discharged  with  a 
view  to  his  acceptance  of  a  commission,  but  he  failed  to  qualify 
physically  for  the  commission.  Upon  the  question  whether  he  was 
entitled  to  travel  pay  as  a  discharged  enlisted  man, 

Held^  that  the  soldier's  discharge  as  an  enlisted  man  to  enable  him 
to  accept  a  commission,  which  he  failed  to  obtain  by  reason  of  physi- 
cal disqualification,  was  a  discharge  from  the  service  within  the  law 
authorizing  travel  pay  to  enlisted  men  upon  their  discharge  from 
the  service;  but  contra  if  he  had  succeeded  in  being  immediately 
mustered  in  in  the  same  regiment  as  an  officer — in  such  event  he 
would  not  have  been  "discharged  from  the  service  "  within  the  mean- 
ing of  the  travel-pay  law,  but  would  have  been  continued  in  the 
service  in  a  higher  grade. 

Comp.  Treas.  July  25,  1917. 

TRAVEL  PAY:   Enlisted  men  on  discharge. 

An  enlisted  man  was  arrested  and  tried  by  the  civil  authorities  on 
a  charge  of  burglary.  His  trial  resulted  in  conviction,  but  the  sen- 
tence was  supended  and  the  soldier  returned  to  the  military  authori- 
ties. About  a  month  thereafter  he  was  discharged  by  order  of  the 
department  commander  because  "convicted  by  a  civil  court  of  the 
crime  of  burglary."  The  question  was  presented  whether  he  was 
entitled  to  travel  pay  upon  his  discharge.  Section  126,  national 
defense  act  of  June  3,  1916,  declares  that  enlisted  meri  when  dis- 


44        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

charged  from  the  service,  "except  hj  way  of  punishment  for  an 
offense,"  shall  be  entitled  to  the  travel  allowances  therein  provided. 

Held^  that  upon  the  discharge  of  a  soldier  he  is  entitled  to  travel 
pay  unless  his  discharge  was  (a)  by  way  of  punishment  for  an  of- 
fense, (&)  by  way  of  favor  or  for  his  own  convenience,  or  (c)  he  was 
withdrawn  from  the  military  service  by  the  civil  authorities,  and 
that  in  the  instant  case  the  soldier  must  be  regarded  as  having  by 
his  own  conduct  created  the  conditions  which  caused  his  separation 
from  the  military  service  under  (<?),  and  that  he  was  therefore  not 
entitled  to  travel  pay  upon  his  discharge. 

Comp.  Treas.  July  23,  1917. 


NOTES  ON  ADMINISTRATION  OF  MILITARY  JUSTICE. 

SENTENCES:   Adequacy  of. 

A  soldier  was  found  guilty  of  being  drunk  and  quitting  his  post 
in  time  of  war  while  on  sentry  duty  guarding  a  bridge.  The  ap- 
pointing authority  approved,  without  comment  thereon,  the  sentence 
of  dishonorable  discharge,  total  forfeitures,  and  confinement  at  hard 
labor  for  one  month.  The  action  of  the  court  and  the  reviewing 
authority  in  this  particular  case  is  not  criticized,  but,  as  a  general 
rule,  a  sentence  combining  dishonorable  discharge  and  a  short  period 
of  confinement  is  inappropriate,  particularly  at  the  present  time, 
because  of  the  resulting  tendency  to  encourage  a  certain  class  of  men 
to  commit  offenses  in  the  hope  of  being  discharged  from  the  military 
service. 


BULLETIN  54. 

OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

ARMY  FIELD  CLERKS:   Service  necessary  to  qualify  for  allowances. 

An  Army  field  clerk  inquired  whether  he  was  entitled  to  credit 
for  prior  service  as  clerk  in  the  Quartermaster  Corps  and  in  the 
Signal  Corps  for  the  purpose  of  making  up  12  years  of  service  under 
the  act  of  August  29,  1916,  which  changed  headquarters'  clerks  to 
Army  field  clerks,  and  provides  that  "after  12  years'  service,"  as 
therein  prescribed,  they  shall  receive  the  same  allowances,  except 
retirement,  "  as  heretofore  allowed  by  law  to  pay  clerks.  Quarter- 
master Corps." 

IlelcL  that  as  the  governing  statute  relates  only  to  headquarters 
clerks  changed  to  Army  field  clerks,  and  there  is  nothing  in  it  to 
suggest  a  different  purpose,  it  must  be  held  that  the  phrase  "  after  12 
years'  service"  refers  only  to  service  as  headquarters  clerk  or  as 
Army  field  clerk ;  and  that  in  the  instant  case  the  field  clerk  was  not 
entitled  to  count  his  prior  service  as  clerk  in  the  Quartermaster  Corps 
and  Signal  Corps. 

Ops.  J.  A.  G.  6-135,  July  24,  1917. 


ARMY  SUPPLIES:  Import  duties. 

On  the  question  whether  Army  supplies  purchased  in  Canada 
(woolen  blankets  and  clothing)  are  admissible  free  of  duty. 

Ueld^  that  the  customs  act  in  force,  as  construed  by  the  officers 
administering  the  same,  requires  all  imports  to  pay  the  prescribed 
duties;  that  they  are  only  admitted  duty  free  where  some  Federal 
statute  authorizes  such  admission ;  and  that  as  to  the  supplies  under 
consideration,  there  being  no  statute  providing  for  their  admission 
free  of  duty,  the  required  duties  must  be  paid,  although  the  supplies 
are  consigned  to  the  proper  officers  of  the  Quartermaster  Corps ;  and 
that  if  it  is  desired  that  such  supplies  be  admitted  free  of  duty, 
express  legislation  must  be  procured  for  that  purpose. 

Ops.  J.  A.  G.  90-313,  Aug.  10,  1917. 

ARTICLES  OF  WAR:  Construction  of  the  forty-fifth  article. 

The  forty-fifth  Article  of  War  provides : 

"  Whenever  the  punishment  for  a  crime  or  offense  made  punish- 
able by  these  articles  is  left  to  the  discretion  of  the  court-martial,  the 
punishment  shall  not,  in  time  of  peace,  exceed  such  limit  or  limits 
as  the  President  may  from  time  to- time  prescribe." 

In  certain  cases  tried  by  general  court-martial  in  which  the  offense 
was  committed  in  time  of  peace  but  not  brought  to  trial  until  after 
war  had  begun,  the  records  disclosed  that  the  courts-martial  pro- 
ceeded upon  the  assumption  that  the  intervention  of  a  state  of  war 
had  rendered  the  maximum  punishment  order  no  longer  operative 

45 


46        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

as  to  all  cases  tried  during  the  state  of  war  irrespective  of  the  time 
of  the  commission  of  the  offenses. 

Held^  that  this  view  of  the  effect  of  the  forty-fifth  article  of  war 
is  erroneous;  that  while  a  liberal  rendering  of  the  article  might  in- 
dicate that  the  time  at  which  an  offense  is  tried^  and  not  the  time  of 
the  commission  of  the  offense,  is  to  determine  the  measure  of  pun- 
ishment, such  a  result  was  clearly  not  the  intention  of  Congress,  but 
under  the  well-known  rule  of  construction  that  the  spirit  and  not 
the  letter  of  the  law  must  prevail  it  must  be  held  that  the  proper 
construction  of  the  forty-fifth  article  of  war  is  to  the  effect  that  the 
maximum  punishment  order  is  applicable  and  must  govern  in  the 
punishment  of  all  offenses  committed  in  time  of  peace  regardless  of 
the  date  Avhen  such  offenses  may  be  tried,  and  that  as  to  all  offenses 
committed  in  time  of  war  the  maximum  punishment  order  will  not 
apply  whether  the  said  offenses  be  tried  during  time  of  war  or  not 
until  time  of  peace. 

Ops.  J.  A.  G.  30-823,  Aug.  29,  1917. 

CIVILIAN  TRAINING  CAMPS:   Claims  for  damages. 

On  the  question  whether  claims  for  damages  to  private  property 
due  to  training-camp  work  are  payable  from  training-camp  funds 
when  duly  found  by  the  proceedings  of  a  board  of  officers,  approved 
by  the  commanding  officer. 

Held^  that  the  appropriation  for  civilian  training  camps  (act  of 
May  12,  1917;  Pub.  No.  11,  65th  Cong.  p.  34)  expressly  includes 
"  damages  resulting  from  field  exercises  and  other  expenses  incident 
to  maintaining  said  camps,"  etc.;  and  that  this  provision  clearly 
covers  damages  to  private  property  due  to  operations  incident  to 
training-camp  work. 

Ops.  J.  A.  G.  18-420,  July  23,  1917. 

COURTS-MARTIAL:   Legality  of  sentence. 

An  enlisted  man  of  an  Engineer  detachment  Avas  sentenced  by 
summary  court-martial  to  be  reduced  from  corporal  to  private.  As 
there  was  no  grade  of  private  in  the  detachment,  the  question  was 
presented  whether  the  sentence  was  legal. 

Held^  that  as  there  is  a  grade  of  private  of  Engineers,  and  as  a 
summary  court-martial  has  jurisdiction  to  reduce  noncommissioned 
officers  to  the  ranks,  the  fact  that  in  the  particular  detachment  there 
was  no  grade  of  private  did  not  affect  the  power  of  the  court,  and 
that  the  sentence  was  legal  if  there  was  no  other  objection. 

Ops.  J.  A.  G.  30-704,  Aug.  22,  1917. 

EIGHT-HOUR  LAW :   Contracts  for  supplies. 

The  question  was  submitted  as  to  whether  the  eight-hour  act 
of  June  19,  1912  (37  Stat.  137),  applies  to  operations  upon  an 
order  placed  with  a  manufacturer  for  panoramic  sights  for  the 
Ordnance  Department,  it  being  stated  that  the  Government  has 
never  manufactured  such  sights  other  than  as  a  laboratory  experi- 
ment, 

IJeld^  that  while  the  prospective  buyers  of  such  supplies  are 
limited  to  governments  or  their  agencies,  they  are,  nevertheless, 
within  the  provision  of  the  statute  excepting  from  the  operation 
of  the  act  supplies  or  materials  which  may  usually  be  bought  in 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.        47 

open   market;   that   the   exception   applies,   although   the  class  of 
purchases  is  so  limited,  is  indicated  by  the  fact  that  there  is  with- 
drawn from  the  exception  "  armor  and  armor  plate,"  a  class  of  arti- 
cles the  market  for  which  is  similarly  limited. 
Ops.  J.  A.  G.  32-313,  Aug.  10,  1917. 

ENLISTED  MEN:   Extra  and  special  duty. 

The  question  was  presented  whether  extra  compensation  is  pay- 
able to  enlisted  men  under  paragraph  329,  Army  Kegulations,  from 
company  and  mess  funds  for  services  as  cooks,  mess  attendants,  etc., 
in  view  of  War  Department  order  of  June  6,  1917,  that  "  no  extra- 
duty  pay  will  be  allowed  "  to  enlisted  men  during  the  time  for  which 
they  will  receive  increased  compensation  under  the  act  of  May  18, 
1917. 

Held^  that  the  War  Department  order  of  June  6,  1917,  which  ap- 
plies only  to  extra-duty  pay  does  not  prohibit  the  allowance  of  adai- 
tional  pay  to  enlisted  men  from  company  and  mess  funds  under 
A.  R.  329,  which  additional  pay  is  for  special  duty  and  not  extra 
duty.  The  distinction  between  extra  and  special  duty  is  well  estab- 
lished. Extra  duty  has  relation  to  constant  labor  extending  over  a 
period  of  not  less  than  10  days,  not  connected  with  the  interior 
administration  of  a  company,  regiment,  or  other  organization,  for 
which  service  compensation  in  the  form  of  extra-duty  pay  has  been 
allowed  by  law.  The  term  special  duty  applies  to  service  connected 
with  the  administration  of  companies,  battalions,  regiments,  etc.,  or 
with  the  comfort  and  welfare  of  enlisted  men  belonging  to  such 
organizations.  It  is  a  duty  which  belongs  to  the  organization — to 
the  enlisted  men  of  the  company  or  regiment  and  not  to  the  public. 

Ops.  J.  A.  G.  72-203,  Aug.  28,  1917. 

ENLISTED  RESEKVE  CORPS:  Aviation  pay. 

The  question  was  submitted  whether  enlisted  men  of  the  Aviation 
Section,  Signal  Enlisted  Reserve  Corps,  are  entitled  to  increased  pay 
when  on  duty  requiring  them  to  participate  regularly  and  frequently 
in  aerial  flights, 

Held^  that  they  are  so  entitled,  under  the  same  conditions  as  are 
enlisted  men  of  the  Regular  Army  on  such  duty,  for  the  reason  that 
section  3  of  the  act  of  July  18,  1914  (38  Stat.  514),  creating  the 
Aviation  Section  of  the  Signal  Corps  and  prescribing  the  personnel, 
provides  that  each  aviation  enlisted  man  shall  receive  additional  pay 
when  on  such  duty ;  and  section  13,  national  defense  act,  only  repeals 
inconsistent  provisions  of  the  prior  law,  leaving  this  provision  in 
force ;  and  section  55,  national  defense  act,  provides  that  members  of 
the  Enlisted  Reserve  Corps,  when  in  active  service,  "  shall  bo  entitled 
to  the  pay  and  allowances  of  the  corresponding  grades  of  the  Regular 
Army,"  etc. 

Ops.  J.  A.  G.  72-200.1,  July  16, 1917. 

INTOXICATING  LIQUORS:   Military  camps. 

With  reference  to  a  recommendation  that  Tampa,  Fla.,  where  cei*- 
tain  troops  were  assembled  preliminary  to  their  transfer  to  a  division 
training  camp,  be  declared  a  military  post  in  order  to  require  the 
closing  of  all  saloons  during  the  presence  of  the  soldiers  there, 


48        DIGEST  OF  OPINIONS  JUDOE  ADVOCATE  GENEEAL   OF  ARMY. 

Held^  that  the  term  "  military  camps,"  as  used  in  the  act  of  iVIay  18, 
1917,  and  the  reguhitions  made  under  authority  thereof  governing 
the  prohibition  of  alcoholic  liquors  "  in  or  near  military  camps,''  had 
reference  to  camps  established  for  purposes  of  mobilization,  training, 
embarkation,  etc.,  of  troops  and  were  not  intended  to  apply  to  places 
of  preliminary  assembly  such  as  that  under  consideration. 

Ops.  J.  A.  G.  48-100,  Aug.  25,  1917. 

MEDICAL  DEPARTMENT:    Treatment  of  contractors'  employees  on  can- 
tonment construction. 

On  the  question  whether  there  was  any  objection  to  the  treatment 
by  the  Medical  Department  of  the  employees  of  contractors  for  build- 
ings at  cantonments, 

Held^  that  while  the  functions  of  the  Medical  Department  are  not 
defined  by  statute,  they  are  necessarily  limited  by  the  terms  of  ap- 
propriations for  the  support  of  the  Army;  that  the  appropriations 
for  the  Medical  Department  appear  to  be  available  only  for  the  med- 
ical care  and  treatment  of  persons  connected  Avith  the  military  estab- 
lishment and,  under  authority  of  the  act  of  September  7,  1916  (39 
Stat.  748),  of  Government  employees  generally  who  are  injured  in 
the  performance  of  their  duty  as  such  employees ;  and  that  while  the 
medical  care  of  contractors'  employees  may  be  authorized  from  ap- 
propriations for  cantonment  construction,  the  limitations  on  the  use 
of  Army  appropriations  would  preclude  payments  from  such  appro- 
priations of  the  necessary  expenditures  involved. 

Ops.  J.  A.  G.  6-227.6,  Aug.  18,  1917. 

NATIONAL   GUARD:   Pay   and  medical  treatment   of  members  prior   to 
muster  into  Federal  service. 

A  National  Guard  enlisted  man  who  had  responded  to  the  Presi- 
dent's call  for  Federal  service  but  had  not  been  mustered  in  suffered 
a  broken  leg  in  a  friendly  scuffle  with  other  enlisted  men  of  his  com- 
pany. There  being  no  Government  facilities  available  for  his  treat- 
ment, he  was  sent  to  a  private  hospital  by  order  of  his  commanding 
officer,  where  he  remained  for  several  weeks  and  was  not  able  there- 
after to  report  to  his  organization  for  duty  before  its  muster  out. 
•It  was  not  clear  from  the  record  whether  the  soldier  had  been  for- 
mally rejected  as  unfit  for  the  Federal  service.  Upon  submission  of 
the  question  as  to  his  right  to  pay  and  the  liability  of  the  Govern- 
ment for  the  expenses  of  his  hospital  treatment, 

Held^  That  in  view  of  the  nature  of  the  soldier's  disability,  his 
rejection  as  being  physically  unfit  for  the  Federal  service  was  neces- 
sarily implied,  assuming  that  he  was  not  formally  rejected,  effective 
on  such  elate  as  it  would  have  been  his  duty  but  for  his  injuries  to 
report  for  muster  in,  and  that  he  was  entitled  to  pay  only  up  to  that 
date;  and  as  to  the  obligation  of  the  United  States  to  pay  the  ex- 
penses of  his  medical  and  hospital  treatment,  his  status  after  the 
date  of  his  implied  rejection  for  physical  disability  was  analogous 
to  the  case  of  a  soldier  discharged  from  the  service  while  confined  in 
a  hospital  for  treatment,  who,  under  the  provisions  of  paragraph 
1452,  Army  Eegulations,  would  be  entitled  to  remain  in  the  hospital 
at  the  expense  of  the  United  States  until  such  time  only  as  he  was 
able  to  leave  the  hospital  and  proceed  to  his  home. 

Ops.  J.  A.  G.  6-227.6,  July  27,  1917. 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.        49 

PAY   AND   ALLOWANCES:   Fuel    and    light   for    Beserve    and    National 
Guard  ofl3.cers. 

In  the  case  of  certain  members  of  the  Officers'  Reserve  Corps  and 
officers  of  the  National  Guard  on  duty  at  a  military  post,  the  ques- 
tion was  raised  as  to  the  legality  of  their  being  charged  by  the 
Quartermaster  Corps  for  fuel  and  light  consumed  by  them  in  public 
quarters. 

Ileld^  that  Congress  has  very  clearly  manifested  its  intention  in 
legislation  that  National  Guard  troops  and  members  of  the  Officers' 
Reserve  Corps  in  the  active  service  of  the  United  States  shall  receive 
the  same  pay  and  allowances  as  is  provided  by  law  for  officers  and 
enlisted  men  of  the  Regular  Army  of  like  grades,  and  that  under  the 
act  of  March  2,  1907  (34  Stat.  1167),  all  officers  are  entitled  to  heat 
and  light  actually  necessary  for  the  allowance  of  quarters  to  which 
they  are  entitled  and  have  been  assigned,  and  in  case  National  Guard 
officers  and  members  of  the  Officers'  Reserve  Corps  on  duty  at  any 
military  post  are  duly  occupying  their  authorized  allowance  of  public 
quarters  at  such  post,  they  should  not  be  charged  for  heat  and  light 
actuallv  necessary  for  such  quarters. 

Ops.*^J.  A.  G.  72-310,  Aug.  18, 1917. 

RETIRED  ENLISTED  MEN :  Active  duty  pay. 

It  was  directed  in  War  Department  orders  that  certain  retired 
enlisted  men  named  therein  "  are  assigned  to  active  duty  in  their 
grades,  to  take  effect  June  20,  1917,  and  w^ill  be  sent  by  the  command- 
ing general  of  the  department  in  which  the  soldiers  reside  to  the 
stations  indicated  for  assignment  to  active  duty."  The  men  were 
not  directed  by  the  department  commander  to  report  for  active  duty 
until  some  time  after  June  20,  1917,  and  the  question  was  presented 
whether  they  were  entitled  to  active  duty  pay  from  June  20,  the  date 
named  in  War  Department  orders  as  the  date  of  their  assignment  to 
active  duty.  Section  7  of  the  act  of  May  18,  1917,  provides  that  the 
President  may  "  authorize  the  employment  on  any  active  duty  of 
retired  enlisted  men  of  the  Regular  Army,  either  with  their  rank 
on  the  retired  list  or  in  the  higher  enlisted  grades,  and  such  retired 
enlisted  men  shall  receive  the  full  pay  and  allowances  of  the  grades 
in  which  they  are  actively  employed. 

Held^  that  the  statute  indicates  clearly  that  the  soldiers  must  be 
emfloyed  on  active  duty  before  full  pay  and  allowances  can  accrue; 
that  the  War  Department  order  in  such  cases  is  to  be  regarded  only 
as  authority  for  employment  of  the  men  on  active  duty  and  does  not 
have  the  effect  of  authorizing  pa}^  from  the  date  mentioned  therein, 
and  that  under  the  statute  active  duty  pay  does  not  commence  until 
the  men  start  in  response  to  specific  orders  to  report  for  duty. 

Ops.  J.  A.  G.  88-630,  Aug.  14,  1917. 

RETIRED  OFFICERS:   Commencement  of  pay  for  active  service. 
Section  24,  national  defense  act  of  June  3, 1916,  provides : 
"  That  in  time  of  war  retired  officers  of  the  Army  may  be  employed 
on  active  duty,  in  the  discretion  of  the  President,  and  when  so  em- 
ployed they  shall  receive  the  full  pay  and  allowances  of  their  grade." 
Held^  that  as  retired  officers  ordered  to  active  duty  imder  'this  stat- 
151738—20 4 


50        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

ute  iire  entitled  to  active  duty  pay  only  when  "  employed  on  active 
duty,"  full  pay  and  allowances  do  not  begin  to  accrue  until  the  officer 
starts  to  obey  his  orders  placing  him  on  active  dutv. 
Ops.  J.  A.  G.  88-630,  Aug.  14,  1917. 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

CIVILIAN  EMPLOYEES:   Compensation  increases. 

The  following  question  was  presented  for  decision: 

"A  civilian  employee  being  in  the  service  prior  to  June  30,  1917,  in 
the  capacity  of  laborer  is  dropped  on  July  5,  1917,  as  such,  and  reem- 
ployed on  July  6  as  packer.  Is  he  entitled  to  the  10  per  cent  increase 
in  pay  under  the  act  making  appropriations  for  the  support  of  the 
Army  for  the  fiscal  year  ending  June  30, 1918,  and  for  other  purposes, 
and  upon  what  is  it  based  ?  " 

Held^  that  if  the  employee  in  question  is  a  civilian  employee  in  the 
Military  Establishment  and  was  borne  on  a  lump-sum  roll  on  June 
30,  1917,  he  is  entitled  to  the  percentage  increase,  on  his  compensation 
as  f  acker ^  provided  the  position  or  rating  of  packer  existed  or  was 
recognized  at  the  close  of  the  fiscal  year  1917  and  the  rate  of  compen- 
sation thereof  does  not  exceed  $1,800  per  annum  or  $5  per  day;  but  if 
the  position  or  rating  of  packer  is  a  newly  established  one  not  recog- 
nized during  the  fiscal  year  1917,  the  employee  receiving  such  rating 
is  entitled  only  to  the  compensation  fixed  therefor  without  any  per- 
centage increase. 

Comp.  Treas.  Aug.  7,  1917. 

CIVILIAN  EMPLOYEES :   Percentage  increase  in  compensation. 

Certain  employees  of  the  Military  Establishment  who  were  in  the 
service  June  30,  1917,  and  borne  on  lump-sum  rolls  were  thereafter 
promoted  to  other  positions  in  the  military  service  also  payable  from 
lump-sum  appropriations.  As  to  whether  they  were  entitled  to  the 
percentage  increases  provided  for  in  the  Army  appropriation  act  ap- 
proved May  12,  1917,  on  the  salaries  of  the  positions  to  which  they 
were  promoted, 

Held^  that  if  the  positions  or  rating  to  which  they  were  promoted 
existed  or  were  recognized  in  the  Military  Establishment  at  the  close 
of  the  fiscal  year  1917,  such  employees  Avere  entitled  to  the  percentage 
increases. 

Comp.  Treas.  Aug.  27,  1917. 

COMIIK^UTATION  OF  QUARTERS :    Officers  on  duty  in  the  field. 

In  the  case  of  certain  National  Guard  organizations  called  into  the 
Federal  service  and  ordered  to  do  guard  duty  along  railroads,  at 
public  buildings,  etc.,  the  question  was  presented  w^hether  such  offi- 
cers were  entitled  to  commutation  of  quarters  in  view  of  the  fact  that 
it  was  "  not  possible  to  establish  a  camp,"  and,  further,  that  no 
tentage  was  available,  and  when  "  ordered  from  home  stations  to  go 
on  guard  duty  at  bridges  and  public  buildings  the  various  corpora- 
tions interested  had  to  furnish  shelter  "  for  the  men,  and  the  officers 
had  to  make  their  own  provisions  for  quarters.  The  act  of  March  4, 
1915,  provides: 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.        51 

"  That  hereafter,  at  phices  wliere  there  are  no  public  quarters  avail- 
able, commutation  for  the  authorized  allowance  therefor  shall,  be 
paid  to  commissioned  officers.     *     *     *.*' 

The  act  of  February  27,  1893  (27  Stat.  480),  provides  that  "offi- 
cers temporarily  absent  on  duty  in  the  field  shall  not  lose  their  right 
to  quarters  or  commutation  thereof  at  their  permanent  staticms  while 
so  temporarily  absent." 

Ileld^  that  the  officers  referred  to  were  not  entitled  to  commutation 
of  quarters  for  the  following  reasons: 

It  has  long  been  the  well-established  nde  that  officers  on  field 
service  do  not  acquire  a  right  to  commutation  of  quarters  while  on 
and  by  reason  of  such  service. 

The  said  officers  were  on  duty  in  the  field,  and  under  their  orders 
had  no  station  other  than  their  field  station,  and  so  could  not  be  tem- 
porarily absent  from  a  permanent  station  within  the  act  of  Februai*y 
27,  1893,  which  act  does  not  give  an  officer  commutation  of  quarters 
r®r  duty  in  the  field,  but  secures  to  him  his  right  to  commutation  of 
quarters  as  for  service  at  his  permanent  station.  If  the  officers  failed 
to  receive  an  allowance  of  tentage  and  camp  equipage,  it  was  an  inci- 
dent of  the  service,  and  there  is  no  authority  for  giving  them  a  money 
allowance. 

Comp.  Treas.  Aug.  8,  1917. 

NATIONAL  GUARD :   Pay  of  enlisted  men  for  training  service. 

Certain  enlisted  men  of  the  District  of  Columbia  National  Guard, 
not  in  the  Federal  service,  were  engaged  in  outdoor  rifle  practice 
under  competent  orders  during  the  month  of  June,  1917. 

Held^  that  they  were  entitled  for  such  service  to  the  increased  rates 
of  pay  provided  for  by  section  10  of  the  act  of  Mav  18,  1917. 

Comp.  Treas.  Aug.  3,  1917. 

PRIVATE  PROPERTY :   Loss  in  shipment  under  orders. 

The  Auditor  for  the  War  Department  disallowed  the  claim  of  a 
noncommissioned  officer  for  the  value  of  his  household  goods  de- 
stroyed by  fire  June  30,  1916,  at  Seattle,  Wash.,  while -in  shipment 
under  orders,  such  disallowance  being  made  for  reasons  stated  as 
follows : 

"As  the  property  was  not  lost  or  destroyed  by  being  shipped  on 
an  unseaworthy  vessel,  nor  by  reason  of  the  claimant  giving  his 
attention  to  saving  property  belonging  to  the  United  States,  no  reim- 
bursement can  be  made." 

Upon  appeal. 

Held.)  by  the  Comptroller,  that  the  claimant  was  entitled  to  reim- 
bursement under  the  act  of  March  4,  1915,  which  extends  the  pro- 
visions of  the  act  of  March  3,  1885,  to  cover  losses  of  private  propeily 
sustained  in  shipment  under  orders  in  excess  of  that  recoverable  from 
the  carrier.  This  legislation  authorizes  and  directs  the  accounting 
officers  of  the  Treasury  to  examine  into,  ascertain,  and  determine  the 
value  of  the  regulation  allowance  of  baggage  belonging  to  officers 
and  enlisted  men  in  the  military  service  which  has  been  lost  or  dam- 
aged in  such  service  on  or  after  March  4,  1915,  in  shipment  under 
orders;  and  when  such  loss  or  damage  was  without  fault  or  negli- 
gence on  the  part  of  the  claimant,  was  not  sustained  in  time  of  war 
or  hostilities  with  Indians,  and  the  claim  for  compensation  is  pre- 


52        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENEKAL  OF  ARMY. 

sented  within  two  years  from  the  occurrence  of  the  loss  Qr  damage, 
the  amount  of  such  loss  or  damage  so  ascertained,  in  excess  of  the 
amount  recoverable  from  the  carrier,  is  payable  by  the  United  States. 
The  liability  of  the  Government  is,  by  the  terms  of  the  act  of  1885, 
"  limited  to  such  articles  of  personal  property  as  the  Secretary  of 
War,  in  his  discretion,  shall  decide  to  be  reasonable,  useful,  necessary, 
and  proper  for  such  officer  or  soldier  while  in  quarters,  engaged  in 
the  public  service,  in  the  line  of  duty." 
Comp.  Treas.  Aug.  1,  1917. 


NOTES  ON  MILITARY  JUSTICE. 

EVIDENCE:   Depositions. 

Under  the  tAventy-fifth  article  of  war  the  use  of  depositions  in  capi- 
tal cases  is  prohibited.  Under  the  fifty-eighth  article  of  war  the  death 
penalty  may  be  imposed  for  desertion  in  time  of  war.  Depositions 
are,  therefore,  not  admissable  as  evidence  in  desertion  cases  in  time 
of  war.  The  fact  that  under  the  thirty-seventh  article  of  war  the 
improper  admission  of  evidence  does  not  wholly  invalidate  the  pro- 
ceedings, if  the  substantial  rights  of  the  accused  have  not  been  injuri- 
ously affected  thereby,  does  not  authorize  the  use  of  depositions  in 
desertion  cases  in  time  of  war. 

SENTENCES:    Forfeiture  of  pay. 

A  number  of  sentences  have  recently  been  noticed  in  which  long 
terms  of  confinment  were  imposed  without  any  forfeiture  or  detention 
of  pay.  In  addition  to  the  general  and  obvious  objections  to  paying 
a  soldier  serving  sentence  for  the  performance  of  duty,  which  because 
of  his  misbehavior  has  been  thrust  upon  his  better-behaved  comrades, 
there  is  the  further  consideration,  which  is  of  particular  importance 
whenever  duty  is  as  arduous  as  it  was  in  several  of  the  instances  no- 
ticed, that  these  sentences  have  a  tendency  to  encourage  rather  than  to 
deter  the  commission  of  offenses  by  a  certain  percentage  of  men.  It 
is  only  in  very  exceptional  cases  that  such  sentences  should  be  consid- 
ered appropriate. 


WlLETIN  67. 
OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

ARMY  I,  E ;  ARMY  BANDS  I :   Competition  of  enlisted  men  with  civilians. 

By  the  act  of^May  11,  1908  (35  Stat.  110),  and  the  act  of  June  3. 
1916  (39  Stat.  175),  enlisted  men,  Army  bands,  and  members  thereoi 
are  forbidden  from  engaging  in  any  competitive  civilian  employment. 
The  implication  is  that  they  may  engage  in  such  employment  if  it 
does  not  interfere  with  the  customary  and  regular  engagement  of 
local  civilians  in  the  respective  arts,  trades,  or  professions.  Whether 
such  interference  will  or  does  result  is  a  question  of  fact,  which  is  not 
to  be  settled  by  reference  either  to  union  labor  alone  or  to  nonunion 
labor  alone. 

Ops.  J.  A.  G.  322.941,  Oct.  25,  1917. 

ARMY  I:   Composition  and  organization. 

^  There  is  but  one  Army  of  the  United  States,  and  every  organiza- 
tion, bureau,  officer,  and  man  in  the  military  service  is  part  of  it. 
The  Inspector  General's  Department,  as  well  as  all  other  staff  corps 
and  departments,  are  to  be  reorganized  out  of  the  Army  at  large  so 
that  such  departments  may  properly  perform  their  ever-increasing 
functions.  The  primary  authority  for  providing  the  necessary  staff 
officers  in  the  increased  establishment  is  not  to  be  found  in  the  use  of 
reserve  officers  as  such,  but  in  the  power  to  appoint  necessary  officers 
under  the  National  Army  act. 
Ops.  J.  A.  G.  6-220,  Oct.  16, 1917. 

The  President  may  organize  the  National  Guard  component  of  the 
Army  of  the  United  States  largely  as  he  sees  fit  under  section  111 
of  the  national  defense  act. 

Ops.  J.  A.  G.  58-210,  Sept.  26, 1917. 

ARMY  II,  D :   Employment  of,  to  aid  civil  authority. 

By  section  4,  Article  IV,  Constitution  of  the  United  States,  and  sec- 
tion 5297,  Revised  Statutes,  the  President  is  authorized,  upon  appli- 
cation therefor  by  proper  State  authorities,  to  employ  such  of  the  land 
and  naval  forces  of  the  United  States  as  may  be  necessary  for  the 
suppression  of  domestic  violence.  This  power  and  responsibility  the 
President  can  not  delegate  to  a  commanding  officer. 

Ops.  J.  A.  G.  6-020,  Oct.  25,  1917. 

ARMY  I,  E :  Status  of  a  lance  corporal. 

A  lance  corporal  is  not  a  noncommissioned  officer. 
Ops.  J.  A.  G.  72-230,  Oct.  9,  1917. 

ARTICLES  OF  WAR  XCI :  Use  of  depositions  in  court-martial  proceedings. 

In  trials  for  desertion  in  time  of  war,  the  use  of  depositions  on  the 
part  of  the  Government  is  not  allowed.  (A.  W.  25.)  Hence  trial 
Judge  advocates  and  convening  authorities  should,  in  determining 

53 


54        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENEKAL  OF  ARMY. 

the  place  of  trial,  bear  in  mind  the  expense  of  procuring  witnesses : 
and  the  trial  judge  advocates  should  make  careful  investigation  to  de- 
termine whether  a  plea  of  guilty  is  to  be  entered  and  whether  testi- 
mony of  witnesses  is  reasonably  necessary. 
Ops.  J.  A.  G.  30-477.1,  Sept.  25;  26-800,  Oct.  13,  1917. 

ARTICLES  OF  WAR  LIX,  I  1:   Delivery  of  soldier  to  civil  authorities. 

In  time  of  war  the  military  authorities  are  not  required  to  sur- 
render to  the  civil  authorities  one  subject  to  military  jurisdiction 
and  charged  with  a  civil  offense.  It  is  recommended  as  a  matter  of 
policy  that  such  surrender  be  not  made,  unless  the  offense  charged  is 
a  most  serious  one  and  the  charge  is  shown  not  to  be  without  proper 
foundation  and  it  appears  that  the  accused  will  be  accorded  a  fair 
trial  without  prejudice  on  account  of  his  military  status. 

Ops.  J.  A.  G.  14-233,  Oct.  30,  1917. 

ARTICLES  OF  WAR  CVI:  Interpretation  of  article  48  (b). 

The  forty-eighth  article  of  war  provides  for  the  execution  of 
the  sentence  of  a  court-martial  dismissing  an  officer  below  the  grade 
of  brigadier  general  in  time  of  war  "  upon  confirmation  by  the  com- 
manding general  of  the  army  in  the  field,  or  by  the  commanding  gen- 
eral of  the  territorial  department  or  division."  The  word  "  division  " 
means  territorial  division  and  not  tactical  division. 

Ops.  J.  A.  G.  30-500,  30-525,  Oct.  24,  1917. 

ARTICLES  OF  WAR  XXI,  C  2 :   Disobedience  of  illegal  order. 

Under  paragraph  53,  Compilation  of  Orders,  an  enlisted  man  com- 
mits no  offense  by  refusing  to  submit  to  a  surgical  operation  advised 
by  the  attending  surgeon  unless  such  surgeon  (1)  executes  a  formal 
written  certificates  stating  the  general  nature  of  the  operation  and 
that,  in  his  opinion,  it  is  without  appreciable  risk  to  the  life  of  the 
soldier  and  is  necessary  for  the  removal  of  a  disability  then  existing 
which  prevents  the  full  performance  of  any  or  all  military  duties  that 
can  properly  be  required  of  the  soldier;  (2)  causes  such  certificate  to 
be  made  a  part  of  the  records  of  his  office;  (3)  reads  the  certificate 
to  the  soldier ;  and  (4)  unless  the  soldier  thereafter  refuses  to  submit 
to  said  operation.  (But  it  was  recommended  that  the  paragraph  be 
amended  so  as  to  apply  only  in  time  of  peace.) 

Ops.  J.  A.  G.  6-227".6,  Oct.  23,  1917. 

CHAPLAINS:   Eligibility  of  Christian  Science  Readers. 

First  Readers  of  the  Christian  Science  Church  are  eligible  to  ap- 
pointment as  chaplains  at  large  under  the  act  of  October  6,  1917,  au- 
thorizing appointment  from  religious  sects  not  recognized,  in  the  ap- 
portionment of  chaplains  now  recognized  by  law. 

Ops.  J.  A.  G.  64-233.3,  Oct.  10,  1917. 

CIVILIAN  EMPLOYEES,  XIII :   Right  to  wear  uniform. 

Psychological  examiners  in  the  National  Army  cantonments  under 
civil-service  appointments  have  no  military  status  whatever  and  are 
not  entitled  to  wear  the  uniform  of  the  United  States  Army. 

Ops.  J.  A.  G.  96-140,  Oct.  27,  1917. 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.         55 
COMMAND  IV,  V;  ARTICLES  OF  WAR  LXXII,  H. 

Under  paragraph  191,  A.  R.,  as  amended  by  General  Orders,  No. 
96,  W.  D.,  July  20,  1917,  division  eommanders  have  full  control  in 
all  that  pertains  to  administration,  instruction,  training,  and  disci- 
pline, and  have  jurisdiction  over  the  personnel  of  camp  quartermas- 
ters, as  well  as  other  members  of  the  military  present  in  their  camps 
and  performing  various  duties  connected  with  the  camps. 

Ops.  J.  A.  G.  20-200,  Oct.  18,  1917. 

CONTRACTS  XX :   Effect  of  failure  of  contractor  to  furnish  bond. 

Where  a  contractor  for  the  repair  of  a  steamer  did  not  furnish  a 
bond,  as  required  by  the  act  of  February  24,  1905  (33  Stat.  811),  but 
deposited  a  certified  check  in  lieu  thereof  and  the  check  was  errone- 
ously returned  upon  the  completion  of  the  work,  leaving  no  protec- 
tion for  possible  claims  of  labor  and  material  men, 

Held^  that  as  a  bond  in  connection  with  such  contracts  is  required 
by  statute  not  only  for  the  protection  of  the  Government  but  also 
for  the  benefit  of  labor  and  material  men,  final  payment  on  the  con- 
tract should  be  withheld  by  the  Government  until  the  contractor  fur- 
nished a  bond  as  required  by  the  statute  in  an  amount  deemed 
sufficient  for  the  protection  of  possible  claims  of  labor  and  material 
men. 

Ops.  J.  A.  G.  76-221,  Sept.  8,  1917. 

DESERTION  V,  B :  Reward,  when  payable. 

The  reward  of  $50  for  the  apprehension  and  delivery  of  a  National 
Army  deserter  should  be  paid  even  though  upon  examination  he  was 
found  to  be  physicallv  disqualified  for  military  service. 

Ops.  J.  A.  G.  26-200,  Oct.  26,  1917. 

DESERTION  V,  C,  B:   Reward,  place  of  delivery. 

No  greater  sum  than  $50  can  be  paid  for  the  apprehension  and 
return  of  a  deserter,  although  the  expense  of  his  return  may  exceed 
that  amount.  But  there  is  no  objection  to  designation  of  a  con- 
venient place  for  receipt  of  deserters  apprehended  and  delivered  by 
civil  authorities,  and  a  detail  may  be  stationed  at  the  designated 
place  to  receive  such  deserters  or  a  guard  sent  there  to  receive  and 
return  them. 

Ops.  J.  A.  G.  26-200,  Oct.  11,  1917. 

DISCHARGE  XXVI,  A:   Of  drafted  alien. 

Citizens  of  a  foreign  country  subject  to  draft  may  not  be  released 
therefrom  to  permit  them  to  enlist  in  the  army  of  their  own  country. 
Ops.  J.  A.  G.  34-442,  Oct.  6,  1917. 

EIGHT-HOUR  LAW :    Extra  pay  for  overtime  work. 

The  question  was  presented  whether  the  Government  was  author- 
ized to  pay  mechanics  employed  under  lump-sum  appropriations 
extra  compensation  for  overtime  work  in  excess  of  eight  hours  a  day, 
such  overtime  work  being  authorized  in  emergencies. 

Heldr^  that  as  there  is  no  law  governing  the  rates  of  pay  of  me- 
chanics employed  directly  by  the  Government  who  are  paid  from  lump- 
sum appropriations,  but  the  terms  of  their  employment  are  fixed  by 
agieement  between  the  parties,  it  is  discretionarv  with  the  depart- 


56        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  AEMY. 

ment  to  allow,  by  agreement  with  such  employees,  extra  pay  for 
overtime  work  in  excess  of  eight  hours;  and  recominended^  in  view 
of  the  prevailing  practice  in  the  commercial  and  industrial  world 
of  allowing  mechanics  and  laborers  extra  pay  for  overtime  in  excess 
of  a  basic  eight-hour  day,  and  of  the  action  of  Congress  in  requiring 
adherence  to  this  practice  as  to  persons  employed  on  contracts  with 
the  United  States  (act  of  Mar.  4, 1917,  39  Stat/ll92),  that  mechanics 
and  laborers  employed  directly  by  the  Government  be  placed  upon 
equal  terms  of  employment  in  this  respect. 
Ops.  J.  A.  G.  32-211,  Sept.  6,  1917. 

EIGHT-HOUR  LAW:   Application  to  certain  contracts. 

The  act  of  June  19, 1912,  the  so-called  eight-hour  law,  excepts  from 
its  operation  contracts  "  for  such  articles  and  materials  as  may  usually 
be  bought  in  open  market,  whether  made  to  conform  to  particular 
specifications  or  not."  Consequently  contracts  for  escort  wagons, 
carts,  and  ambulances,  which  follow  commercial  designs,  differing 
mainly  in  grade  and  size  of  material  used  in  their  manufacture,  are 
not  governed  by  the  provisions  of  said  act. 

Ops.  J.  A.  G.  32-313,  Oct.  18, 1917. 

Contracts  for  clothing  ma}^  not  contain  a  provision  permitting  more 
than  eight  hours'  work  per  day  for  eight  hours'  pay,  even  though  the 
week's  work  be  limited  to  48  hours.  Under  the  Executive  order  of 
March  24,  1917,  more  than  eight  hours'  work  per  day  is  permitted, 
provided  that  full  pay  be  given  for  eight  hours,  and  pay  at  the  rate 
of  time  and  one-half  for  overtime. 

Ops.  J.  A.  G.  32-300,  Oct.  18,  1917. 

ENLISTMENT  II,  B:   Conscientious  objectors. 

Members  of  well-recognized  religious  sects  whose  creed  or  prin- 
ciples forbid  the  participation  in  war  are  exempted  only  from  com- 
batant service,  not  from  noncombatant  military  service.  Service  with 
the  American  Red  Cross  or  manual  labor  performed  upon  farms  or 
gardens  operated  for  the  benefit  of  the  Army  on  land  leased  or  occu- 
pied for  military  purposes  is  not  militar^^  service,  and  can  not  be 
designated  by  the  President  as  noncombatant  military  service,  assign- 
ment to  which  will  relieve  conscientious  objectors  from  military 
service. 

Ops.  J.  A.  G.  34-442.1,  Sept.  18, 1917. 

ENLISTMENT  II,  A :   Date  of. 

A  drafted  man  is  enlisted  from  the  date  specified  in  the  notice  of 
the  local  board  or  of  the  adjutant  general  of  the  State  for  the  man  to 
report  to  the  local  board  or  at  a  designated  place  for  military  duty. 
His  pay  begins  upon  that  date. 

Ops.*  J.  A.  G.  72-200,  Oct.  2,  1917. 

ENLISTMENT  II,  E:  Failure  to  respond  to  draft. 

Drafted  persons  who  fail  to  respond  to  the  draft  are  deserters  and 
are  subject  to  trial  by  courts-martial  for  desertion.  Reward  of  $50 
may  be  paid  for  their  apprehension  and  delivery. 

Ops.  J.  A.  G.  26-221,  Oct.  10,  1917. 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.        57 

ENLISTMENT  I,  A  9e;  II,  E:  Effect  of  fraudulent  enlistment. 

An  enlisted  man  in  the  National  Guard  daserted  before  the  Na- 
tional Guard  was  drafted,  and  enlisted  in  the  Medical  Department, 
United  States  Army.  After  tlie  drafting  of  the  National  Guard  he 
was  discharged  from  the  latter  enlistment  for  fraudulent  enlistment. 
Held  that  he  was  included  in  the  draft  of  the  National  Guard;  that 
his  present  status  is  that  of  a  deserter  from  the  military  service  of 
the  United  States ;  and  that  he  is  not  eligible  for  reenlistment. 

Ops.  J.  A.  G.  58-141,  Oct.  4,  1917. 

ENLISTMENT  I,  A  6 :   Enlistment  for  restricted  service. 

Under  the  act  of  July  24,  1917,  no  authority  is  given  to  enlist  men 
in  the  Signal  Corps  for  musical  purposes  solely  and  on  condition  that 
they  shall  not  be  liable  to  or  eligible  for  general  military  duty  as 
soldiers. 

Ops.  J.  A.  G.  8-150,  Oct.  30,  1917. 

ENLISTMENT  I,  C  la,  c:   Repatriation. 

American  citizens  who  have  heretofore  enlisted  in  armies  of  powers 
at  war  with  any  country  with  which  the  United  States  is  at  war  may 
have  their  American  citizenship  restored  under  the  act  of  October  5, 
1917. 

Citizenship  is  not  necessary  for  enlistment  in  the  United  States 
Armv  in  time  of  war. 

Ops.  J.  A.  G.  13-210,  Oct.  13,  1917. 

ENLISTMENT  I,  C  Ic:   Rights  of  enlisted  alien  enemy. 

A  citizen  of  Germany  who  is  an  enlisted  man  in  the  Army  of  the 
United  States  is  not  forbidden  by  the  President's  proclamation  of 
April  6,  1917,  to  go  within  one-half  mile  of  any  fort,  etc.,  when  or- 
dered to  do  so  by  his  superiors. 

Ops.  J.  A.  G.  99-211,  Oct.  26,  1917. 

GOVERNMENT  AGENCIES  II,  B :  Investment  of  company  funds. 

Surplus  company  funds  may  be  properly  invested  in  Liberty  bonds. 
Ops.  J.  A.  G.  40-221,  Oct.  13,  1917. 

INSIGNIA  OF  MERIT,  I,  C :   Distinguished-service  medals. 

The  President  as  Commander  in  Chief  has  authority  to  provide  for 
distinguished-service  medals  to  be  conferred  for  deeds  of  gallantry  in 
action  and  other  exceptionally  meritorious  service,  in  addition  to 
those  medals  now  provided  for  by  legislative  action. 

Ops.  J.  A.  G.  46-100,  Oct.  27,  1917. 

INTOXICANTS:  Application  of  President's  regulations. 

Section  12  of  the  act  of  May  12,  1917,  and  the  regulations  there- 
under, prohibiting  intoxicating  liquors  within  specified  distances  of 
camps,  apply  to  military  camps  in  Porto  Rico  for  the  mobilization 
and  training  of  drafted  men. 

Ops.  J.  A.  G.  48-100,  Oct.  8,  1917. 

INTOXICANTS :   Enforcement  of  President's  regulations. 

There  is  no  authority  under  section  12  of  the  draft  act  and  the 
regulations  of  the  President  thereunder  for  seizure  of  liquor  within 


58        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

the  prescribed  zones  nor  for  search  of  premises  therein  without  a 
search  warrant.    The  regulations  are  to  be  enforced  through  the  De- 
partment of  Justice.    Cooperation  with  the  Commissioner  of  Inter- 
nal Revenue  is  advised. 
Ops.  J.  A.  G.  48-100,  Oct.  20,  1917. 

The  Federal  laws  and  regulations  concerning  intoxicating  liquors 
and  bawdy  houses  within  prescribed  limits  of  camps  and  concerning 
the  sale  of  intoxicants  to  soldiers  in  uniform  should  be  strictly  en- 
forced, and  the  commanding  officers  should  request  local  authorities 
to  enforce  rigidly  and  vigorously  the  local  statutes  and  regulations 
as  to  intoxicants  and  vice  and  should  cooperate  with  them  so  far  as 
possible. 

Ops.  J.  A.  G.  48-100,  Oct.  23,  191T. 

INTOXICANTS:   Interpretation  of  President's  regulations. 

The  word  camp  as  used  in  the  regulations  of  the  President  issued 
under  section  12  of  the  draft  act  includes  not  only  the  space  actually 
occupied  by  the  tents  or  other  cover  in  which  the  soldiers  live  but 
as  well  the  adjacent  territory  habitually  used  by  the  encamped  forces 
in  the  performance  of  their  military  duties.  Within  the  prescribed 
limits  of  such  camps  the  regulations  should  be  rigidly  <^nforced,  and 
no  suggestion  of  local  civil  authorities  to  the  contrary  should  be  tol- 
erated. 

Ops.  J.  A.  G.  48-020,  Oct.  20,  1917. 

INTOXICANTS :  Penalty  for  violation  of  President's  regulations. 

Licenses  for  the  sale  of  intoxicating  liquors  granted  by  the  re- 
spective States  can  not  be  revoked  by  Federal  authority  for  violation 
of  Federal  regulations. 

Ops.  J.  A.  G.  48-100,  Oct.  9,  1917. 

MILITIA:   Draft  of  State  staff  corps. 

Within  the  terms  of  the  national  defense  act  officers  and  enlisted 
men  of  the  usual  staff  corps  and  departments  of  the  several  States 
were  not  members  of  the  National  Guard,  but  this  Avas  changed  by  the 
Army  appropriation  act  of  May  12,  1917.  Such  officers  and  men  may 
now  be  drafted  into  the  Army  of  the  United  States,  for  the  Presi- 
dent's power  was  not  exhausted  by  his  proclamation  of  August  5, 
1917. 

Ops.  J.  A.  G.  58-141,  Oct.  30,  1917. 

MILITIA  VIII,  A:   Expenses  of,  after  draft. 

Necessary  expenses  for  armories,  fuel,  light,  water,  etc.,  for  the 
organized  National  Guard  incurred  after  August  5,  1917,  are  proper 
charges  against  the  United  States. 

Ops.  J.  A.  G.  80-710,  Oct.  8,  1917. 

MILITIA  III:   Grade  of  wagoner  not  authorized  in  separate  companies. 

In  the  case  of  a  company  of  Engineers,  National  Guard,  in  the 
Federal  service,  there  were  four  men  included  as  wagoners,  and 
the  question  was  presented  in  connection  with  their  payment  whether 
wagoners  are  authorized  for  separate  companies  of  Engineers,  Na- 
tional Guard. 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.        59 

Ileld^  That  as  wagoners  do  not  form  a  part  of  the  statutory,  per- 
sonnel of  a  National  Guard  company,  which,  by  section  60  of  the 
national-defense  act,  must  be  the  same  as  that  prescribed  for  the 
Eegular  Army,  they  can  not  be  recognized  as  a  part  of  the  authorized 
personnel  of  such  companies  unless  they  are,  in  fact,  a  part  of  a 
regiment  or  mounted  battalion,  as  required  by  the  statute ;  that  sepa- 
rate companies  of  Engineers,  whether  of  the  National  Guard  or  of 
the  Regular  Army,  can  not  include  as  a  part  of  their  personnel  en- 
listed men  of  the  grade  of  wagoners,  but  that  the  duties  which 
would  in  a  company  forming  part  of  a  regiment  or  of  a  mounted  bat- 
talion, be  performed  by  a  wagoner  must  in  a  separate  company  be 
performed  by  enlisted  men  of  other  grades  detailed  for  that  purpose 
or  by  wagoners  detailed  from  organizations  having  enlisted  men  of 
that  grade. 

Ops.  J.  A.  G.  58-210,  Feb.  1,  1917. 

MILITIA  I,  IV:   Status  of  Home  Guards,  etc. 

During  the  present  war  a  State  may  lawfully  raise  and  maintain 
troops  which  resemble  in  all  or  almost  all  respects  the  Avell-known 
militia  of  the  several  States  as  it  hitherto  existed,  for  service  within 
its  own  boundaries  exclusively.  These  forces  are  capable  of  being 
called  by  the  Nation  into  the  service  of  the  United  States  for  the 
usual  constitutional  purposes,  and  the  members  as  individuals  can 
be  drafted  by  the  Federal  Government,  but  are  not  subject  to  draft 
under  second  paragraph  of  section  1  of  the  national-defense  act  as 
members  of  the  National  Guard. 

Ops.  J.  A.  G.  58-980,  Oct.  13,  1917. 

OFFICE  III,  A  7 :  Acceptance  by  conduct. 

Obedience  by  a  person  already  in  the  service  to  an  order  directing 
him  to  report  at  a  designated  place  can  not  be  considered  acceptance 
of  an  appointment  of  which  the  said  person  had  no  notice  or  knowl- 
edge. 

Ops.  J.  A.  G.  64-231,  Oct.  13,  1917. 

OFFICE  III,  A  7 :  Acceptance  of,  by  conduct. 

An  officer,  holding  a  commission  in  the  Medical  Reserve  Corps',  re- 
fused a  commission  in  the  medical  section  of  the  Officers'  Reserve 
Corps.  He  continued  in  active  service  after  the  termination  of  the 
commission  in  the  Medical  Reserve  Corps  and  continued  to  receive 
pay  as  an  officer  of  the  Army. 

Held^  that  acceptance  of  a  commission  may  be  implied  as  well  as 
expressed,  that  the  officer's  conduct  constituted  an  acceptance  of  the 
commission  in  the  Officers'  Reserve  Corps,  and  that  he  should  be  re- 
quired to  take  the  oath  prescribed  bv  law. 

Ops.  J.  A.  G.  64-218.3,  Oct.  19,  1917. 

OFFICE  IV,  E  2;  DISCHARGE  XX:   Discharge  of  National  Guard  officers 
after  draft. 

Upon  the  draft  of  the  National  Guard  into  the  Federal  service 
officers  thereof  became  officers  of  the  United  States  Army  and  can 
thereafter  be  discharged  only  under  section  9  of  the  act  of  May  18, 
1917.  Paragraph  19,  Special  Regulations  55,  War  Department,  1917. 
does  not  apply. 

Ops.  J.  A.  G.  6^350,  Oct.  15,  1917. 


60        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL   OF  ARMY. 

OFFICE  III,  A  1 :   Eligibility  for  appointment. 

A  man  who  has  completed  one  year's  service  in  the  National  Army 
may  become  a  candidate  to  fill  a  vacancy  in  the  grade  of  second  lieu- 
tenant in  the  Regular  Army  created  or  caused  by  the  increase  due  to 
the  operation  of  the  act  of  June  3,  1916,  but  not  for  a  vacancy  not 
so  caused.  The  phrase  "  except  as  to  promotions  "  in  section  2  of  act 
of  May  18,  1917,  applies  exclusively  to  officers. 

Ops.  J.  A.  G.  64-212,  Oct.  10,  1917. 

OFFICE  III,  A   1 :   Qualifications  for  appointment  as  second  lieutenant,. 
Regular  Army. 

Section  24  of  the  national-defense  act,  as  amended  by  the  act  ap- 
proved May  12,  1917,  provides,  v^ith  reference  to  the  filling  of  vacan- 
cies in  the  grade  of  second  lieutenant,  Regular  Army,  for  the  appoint- 
ment— 

"  Under  provisions  of  exisiting  law  *  *  *  ^.f  members,  in- 
cluding officers,  of  the  Organized  Militia,  the  National  Guard,  or 
Naval  Militia,  between  the  ages  of  21  and  34  years  who  have  had 
at  least  ninety  days'  actual  Federal  military  service  under  any  call 
of  the  President  during  the  calendar  year  nineteen  hundred  and  six- 
teen, and  whose  fitness  for  promotion  shall  have  been  determined  by 
examination," 

Held^  that  a  person  who  had  been  discharged  from  the  National 
Guard  and  had  entered  a  training  camp  as  a  candidate  for  a  com- 
mission was  not  eligible  for  appointment  as  a  second  lieutenant  under 
the  said  provision,  as  the  qualification  of  membership  in  the  National 
Guard  must  exist  at  the  date  of  appointment. 

Ops.  J.  A.  G.  64-213.3,  Aug.  17,  1917. 

Held  further^  that  a  National  Guard  enlisted  man  furloughed  to 
the  National  Guard  Reserve  was  eligible  for  appointment  under  the 
said  provision  as  he  continued  to  be  a  member  of  the  National  Guard. 

Ops.  J.  A.  G.  58-214,  Sept.  26,  1917. 

Held  further^  that  no  person  is  eligible  as  a  member  of  the  National 
Guard  for  appointment  as  a  provisional  second  lieutenant  in  the 
Regular  Army  under  section  24  of  the  national  defense  act, .  as 
amended  by  act  of  May  12,  1917,  unless  he  is  a  member  of  the  Na- 
tional Guard  at  the  date  of  appointment.  It  is  immaterial  that  they 
were  members  of  National  Guard  at  date  of  examination. 

Ops.  J.  A.  G.  64-213.3,  Oct.  10,  1917. 

PAY  AND  ALLOWANCES  I,  B  6,  C  6:   Longevity  and  continuous-serv- 
ice pay. 

Officers  and  enlisted  men  of  the  National  Guard  are,  when  drafted 
into  the  Federal  service  under  the  act  of  June  3,  1916,  entitled  to 
credit  for  their  prior  service,  both  State  and  Federal,  in  the  National 
Guard,  for  purposes  of  longevity  and  continuous-service  pay.  But 
this  right  is  limited  to  those  actually  brought  into  the  service  as 
National  Guardsmen  under  the  draft.     (As  to  rank,  see  below.) 

Ops.  J.  A.  G.  58-631 ;  72-130,  Oct.  27,  1917. 

PAY  AND  ALLOWANCES  I,  A  la;  II,  A  3:   Of  drafted  men  upon  ais- 
charge. 

Drafted  men  who  are  exempted  after  their  arrival  at  the  mo- 
bilization camp  are  entitled  to  receive  pay  for  the  time  spent  after 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.        61 

their  order  to  the  camp  until  their  discharge  and,  in  addition  there- 
to, an  amount  equal  to  3J  cents  per  mile  from  the  mobilization  camp 
to  the  place  from  which  they  were  ordered  to  said  camps. 
Ops.  J.  A.  G.  94-245,  Oct.  15,  1917. 

PAY  AND  ALLOWANCES  I,  C ;  II,  A  3 :   Of  men  in  training  camps. 

Enlisted  men  of  the  National  Guard,  as  well  as  students  at  Signal 
Corps  aviation  schools,  while  being  trained  as  officers  in  training 
schools  or  camps  are  entitled  to  the  same  pay  and  allowances  as  can- 
didates at  reserve  officers'  training  camps. 

Ops.  J.  A.  G.  72-200.1,  Oct.  9,  1917. 

PAY  AND  ALLOWANCES  II,  A  2d :   Officer's  private  mount. 

An  officer  owning  a  private  mount  acquired  by  him  before  receipt  of 
General  Order  No.  113,  who  is  ordered  to  foreign  service  and  is  not 
required  to  take  his  mount  with  him,  may  have  said  mount  cared  for 
at  a  remount  depot  at  public  expense  while  such  officer  is  on  duty 
abroad,  but  he  must  send  the  mount  to  such  depot  at  his  own  expense. 

Ops.  J.  A.  G.  94-011,  Oct.  23,  1917. 

PAY  AND  ALLOWANCES  I,  C  5 :   Reenlistment  pay  is  not  bounty  within 
prohibition  of  act  of  May  18,  1917. 

The  question  was  presented  whether  the  provision  in  the  National 
Army  act,  approved  May  18,  1917  (Bui.  32,  War  Dept.  1917),  that 
*'  no  bounty  shall  be  paid  to  induce  any  person  to  enlist  in  the  mili- 
tary service  of  the  United  States,"  repealed  the  provision  in  the  act 
of  May  11,  1908  (35  Stat.  110),  authorizing  the  payment  of  a  sum 
equal  to  three  months'  pay  to  any  honorably  discharged  soldier  upon 
his  reenlistment  within  three  months  after  his  discharge : 

Held^  That  the  three  months'  gratuity  authorized  by  the  act  of 
May  11,  1908,  upon  the  reenlistment  of  an  honorably  discharged  sol- 
dier is  not  a  bounty  within  the  prohibition  of  the  act  of  May  18, 
1917,  and  that  the  former  act  was  hot  repealed  by  the  latter. 

Ops.  J.  A.  G.  72-030,  Sept.  26,  1917. 

PAY  AND  ALLOWANCES  II,  A  2 :  Subsistence  of  officers  on  Army  trans- 
ports. 

There  is  no  authority  of  law  for  the  allowance  of  free  subsistence 
to  officers  stationed  on  Army  transports. 
Ops.  J.  A.  G.  94-100,  Oct.  15,  1917. 

Naval  officers  in  charge  of  naval  gun  crews  on  United  States  Army 
transports  are  not  entitled  to  their  subsistence  at  Government  ex- 
pense. 

Ops.  J.  A.  G.  94-124.1,  Oct.  8,  1917. 

PUBLIC  PROPERTY  I :   Illegal  sale. 

Where  an  officer  sold  an  old  storehouse  on  a  Government  reserva- 
tion under  instructions  from  the  War  Department,  but  without  the 
inspection  and  survey  required  by  section  1241,  Revised  Statutes: 

Held^  That  the  sale  was  illegal,  and,  as  the  money  had  not  been  de- 
posited in  the  Treasury,  the  officer  should  be  directed  to  refund  the 
saUie  to  the  purchaser  and,  after  submitting  the  property  to  inspec- 
tion, to  sell  it  in  accordance  with  the  method  prescribed  by  para- 
graph 680,  Army  Regulations. 

Ops.  J.  A.  G.  80-132,  Sept.  26, 1917. 


62        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENEKAL  OF  ARMY. 

RANK  II:   Effect  of  service  in  National  Guard  for  purpose  of  determining 
rank. 

The  National  Guard  as  an  organization  never  becomes  federalized. 
Its  members  become  a  Federal  force  only  when  drafted  into  the  Army 
of  the  United  States,  and  its  officers  become  officers  of  the  United 
States  only  when,  upon  the  draft,  they  become  appointed  officers  of 
the  Army  of  the  United  States.  Therefore  service  as  a  commissioned 
officer  of  the  National  Guard  as  such,  either  out  of  the  service  of  the 
United  States  or  in  the  service  of  the  United  States,  for  constitu- 
tional purposes,  can  not  be  counted  in  determining  rank  within  sec- 
tion 1219,  Revised  Statutes. 

In  determining  rank  of  officers  of  the  Army  of  the  United  States^ 
Eevised  Statutes,  section  1219,  and  the  one  hundred  and  nineteenth 
article  of  war  must  be  construed  together.  The  one  hundred  and 
nineteenth  article  of  war  has  to  do  with  arranging  all  officers  in  the 
service  of  the  United  States  into  classes  and  specifying  the  order  of 
precedence  of  these  classes.  Revised  Statutes,  section  1219,  finds  its 
field  of  operation  only  in  determining  rank  inter  sese  betw^een  officers 
of  the  same  grade  and  date  of  appointment  within  a  single  one  of  the 
several  classes  enumerated  in  the  one  hundred  and  nineteenth  article 
of  war.  . 

Ops.  J.  A.  G.  82-200,  Oct.  IT,  20,  22,  1917. 

MEMORANDUM   FOR   THE   ADJUTANT   GENERAL. 

82-200. 

October  IT,  1917. 

Subject:  Whether  service  as  a  commissioned  officer  in  the  National 
Guard  in  the  service  of  the  United  States,  or  otherwise, 
may  be  counted  as  service  as  a  commissioned  officer  of  the 
United  States  for  the  purpose  of  determining  rank  of 
officer  of  the  Army  of  the  same  grade  and  date  of 
appointment. 

1.  This  question  has  been  before  this  office  several  times,  but  has 
never  been  comprehensively  considered.  There  seems  to  be  a  diver- 
sity of  view  within  the  department  itself  to  Avhich  certain  opinions 
and  expressions  of  this  office  have  contributed.  I  have  before  me  at 
the  present  time  the  question  of  the  relative  rank  of  four  brigadier 
generals  now  on  duty  with  the  Twenty-eighth  Division,  and  in  con- 
sidering that  case  it  is  deemed  opportune  for  this  office  now  to  en- 
deavor to  give  final  expression  to  its  views.  Fair  examination  of  the 
question  will  show  that  it  is  neither  obscure  nor  difficult. 

2.  At  the  base  of  the  matter  we  find  the  following  statutes : 
"Art.  119.  Bank  and  precedence  among  Regulars,  Militia,  and  Vol- 
unteers.— That  in  time  of  war  or  public  danger,  when  two  or  more 
officers  of  the  same  grade  are  on  duty  in  the  same  field,  department,  or 
command,  or  of  organizations  thereof,  the  President  may  assign  the 
command  of  the  forces  of  such  field,  department,  or  co^nmand,  or  of 
any  organization  thereof,  without  regard  to  seniority  of  rank  in  the 
same  grade.  In  the  absence  of  such  assignment  by  the  President, 
officers  of  the  same  grade  shall  rank  and  have  precedence  in  the  fol- 
lowing order,  without  regard  to  date  of  rank  or  commission  as  between 
officers  of  different  classes,  namely :  First,  officers  of  the  Regular  Army 
and  officers  of  the  Marine  Corps  detached  for  service  with  the  Army 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.        63 

by  order  of  the  President ;  second,  officers  of  forces  drafted  or  called 
into  the  service  of  the  United  States ;  and,  third,  officers  of  the  volun- 
teer forces:  Provided^  That  officers  of  the  Regular  Army  holding 
commissions  in  forces  drafted  or  called  into  the  service  of  the  Unitea 
States  or  in  the  volunteer  forces  shall  rank  and  have  precedence  under 
said  commissions  as  if  they  were  commissions  in  the  Regular  Army ; 
the  rank  of  officers  of  the  Regular  Army  under  commissions  in  the 
National  Guard  as  such  shall  not,  for  the  purpose  of  this  article,  be 
held  to  antedate  the  acceptance  of  such  officers  into  the  service  of  the 
United  States  under  said  commissions." 

Section  1219,  Revised  Statutes: 

"  In  fixing  relative  rank  between  officers  of  the  same  grade  and 
date  of  appointment  and  commission  the  time  which  each  may  have 
actually  served  as  a  commissioned  officer  of  the  United  States, 
whether  continuously  or  at  different  periods,  shall  be  taken  into 
account.  And  in  computing  such  time  no  distinction  shall  be  made 
between  service  as  a  commissioned  officer  in  the  Regular  Army  and 
service  since  the  nineteenth  day  of  April,  eighteen  hundred  and 
sixty-one,  in  the  volunteer  forces  whether  under  appointment  of 
commission  from  the  President  or  from  the  governor  of  a  State." 

It  is  to  be  observed  that  section  1219,  Revised  Statutes,  applies  to 
officers  of  the  Army,  without  express  regard  to  classes ;  and  that  the 
one  hundred  and  nineteenth  article  has  to  do  with  arranging  all 
officers  in  the  service  of  the  United  States  into  classes  and  specifying 
the  order  of  precedence  of  these  classes.  Obviously,  an  officer  of  the 
senior  class  will  rank  any  officer  of  the  same  grade  in  a  junior  class, 
regardless  of  respective  dates  of  appointment  or  other  incidents  of 
office.  In  the  determination  of  rank  as  between  officers  of  the  same 
grade  and  date  of  appointment  of  tlie  different  classes  enumerated  in 
the  one  hundred  and  nineteenth  article,  section  1219,  Revised  Stat- 
utes, can  have  no  application  whatever,  and,  construing  the  two 
statutes  together  as  they  must  be  construed,  the  latter  finds  its  field 
of  operation  only  in  determining  rank  inter  sese  between  officers 
of  the  same  grade  and  date  of  appointment  within  a  single  one  of 
the  several  classes  enumerated  in  the  article.  Inasmuch  as,  as  a 
practical  present-day  matter,  we  are  no  longer  concerned  with  volun- 
teers nor  with  the  National  Guard  called  into  the  service  of  the 
United  States,  in  which  capacity  none  such  are  now  serving,  the 
question  specifically  applied  is,  whether  such  commissioned  service 
in  the  National  Guarcl  shall  be  counted  in  determining  i-ank  where 
grade  and  date  of  appointment  are  the  same  between  (1)  Regular 
officers  (and  Marines  attached),  and  (2)  all  other  officers  of  the 
Army,  which  term  includes  {a)  officers  of  organizations  composed 
of  erstwhile  members  of  the  National  Guard,  {h)  officers  of  the  so- 
called  National  Army,  a  term  applied  to  all  other  additional  forces, 
and  {c)  reserve  officers,  who  fall  within  the  same  class. 

3.  But,  preparing  to  apply  the  rule  of  the  statute  to  the  present 
inquiry,  what  is  actual  service  as  a  commissioned  officer  of  the  United 
States  ?  In  the  first  place,  it  must  be  observed  that  the  service  is 
required  to  be  service  as  a  commissioned  officer  of  the  United  States. 
The  service  must  be  as  such  commissioned  officer,  perhaps  not  neces- 
sarily as  a  de  jure  but  certainly  as  a  c?^  facto  officer  of  the  United 
States.    The  office  must  be  an  office  of  the  United  States,  established 


64        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENEEAL  OF  AKMY. 

in  all  respects  by  the  laws  of  the  United  States,  and  the  appointment 
must  be  made  in  the  manner  provided  by  the  Constitution  and  laws 
of  the  United  States. 

The  method  of  appointment  of  officers  of  the  United  States  is  found 
prescribed  in  section  2,  article  2  of  the  Constitution,  which  in  relevant 
portion  is  as  follows: 

"  He  (the  President)  shall  nominate  and  by  and  with  the  advice 
and  consent  of  the  Senate  shall  appoint  *  *  *  all  other  officers 
of  the  United  States  whose  appointments  are  not  herein  otherwise 
provided  for,  and  which  shall  be  established  by  law,  but  the  Congress 
may  by  law  vest  the  appointment  of  such  inferior  officers,  as  they 
think  proper,  in  the  President  alone,  in  the  courts  of  law,  or  in  the 
heads  of  departments." 

All  officers  of  the  United  States  must  be  appointed  in  accordance 
with  the  above  provision  of  fundamental  law.  National  Guard 
officers  are  not  so  appointed.  They  are  appointed  by  and  under  State 
sovereignty. 

Furthermore,  by  the  context,  the  section  clearly  has  reference  to 
service  in  the  Army  of  the  United  States.  Service  in  the  National 
Guard,  whether  when  called  into  the  Federal  service  or  otherwise, 
can  not  be  the  service  defined  which  the  statute  requires.  The  officers 
of  the  National  Guard  are  not  officers  of  the  United  States,  and  the 
National  Guard  itself,  whether  within  or  without  the  service  of  the 
United  States,  is  no  part  of  the  Army  of  the  United  States. 

4.  Whatever  be  the  degree  of  Federal  control  over  the  National 
Guard,  when  it  is  not  in  the  service  of  the  United  States  or  when  it 
is,  that  institution  is  primarily  a  State  institution;  its  officers  are 
State  military  officials,  appointed  by  the  governor  and  subject  largel}^ 
to  his  and  other  local  control.  The  sharp  legal  and  historical  dis- 
tinction between  National  Guard  of  the  several  States,  an  alter  nomen 
for  the  militia  of  the  several  States,  and  the  Army  of  the  United 
States  is  fundamental,  and  can  not  be  broken  down  or  obscured  by 
legislation,  and  the  existing  legislation  has  no  such  effect.  To  be  sure, 
the  National  Guard  under  the  national-defense  act  is  something  other 
than  the  National  Guard  as  it  had  existed  under  the  Dick  bill  and  as  it 
had  existed  prior  to  the  Dick  bill.  It  can  not  be  said,  however,  that 
it  is,  or  can  be,  divested  of  its  fundamental  militia  status.  True, 
under  existing  legislation  there  is  superimposed  upon  the  militia 
status  of  the  individual  another  obligation,  namely,  the  obligation  to 
serve  in  the  Army  of  the  United  States  when  the  individual  militia- 
man is  drafted  therein.  But,  obviously,  that  obligation  adds  nothing 
whatever  to  the  national  power  which  Congress,  under  its  authority 
to  raise  and  support  armies,  could  otherwise  have  asserted  over  mem- 
bers of  the  Organized  Militia^  regardless  of  such  personal  obliga- 
tions. Members  of  the  Organized  Militia  are  subject  to  be  drafted 
into  the  Army  of  the  United  States,  as  are  all  other  citizens  of  the 
United  States,  and  the  personal  obligation  upon  their  part  adds 
naught  to  that  national  power. 

The  militia  status  of  the  National  Guard  remains  unaffected  up  to 
the  point  where  the  individual  members  thereof  are  by  draft  placed 
into  the  Army  of  the  United  States.  Whether  the  National  Guard, 
therefore,  be  not  in  the  service  of  the  United  States,  or  whether  it  be 
called  into  the  service  of  the  United  States  as  such  for  the  constitu- 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.         66 

tional  purpose  "  to  execute  the  laws  of  the  Union,  suppress  insurrec- 
tion, and  repel  invasion,"  it  is  still  a  State  force,  and  its  relation  to 
the  Federal  Government  is  that  of  a  State  military-  force  subject, 
under  the  Constitution,  to  be  requisitioned  as  such  foi*  limited  Fed- 
eral purposes.  The  organization  never  becomes  federalized.  Its 
members  become  a  Federal  force  only  when  drafted  into  the  Army  of 
the  United  States,  and  its  officers  become  officers  of  the  United  States 
only  when  upon  the  draft  they  become  appointed  officers  of  the  Army 
of  the  United  States. 

5.  The  national  defense  act  never  loses  sight  of  this  distinction. 
The  constitutional  power  of  Congress  to  call  the  militia  into  the  Fed- 
eral service  is  invoked,  for  instance,  by  section  101  of  the  bill,  which 
contemplates  the  call  of  the  National  Guard  as  such;  that  is,  as 
Organized  Militia  for  the  specified  constitutional  purposes.  When  in 
the  active  service  of  the  United  States  under  such  a  call  the  militia 
serves  as  militia  of  the  several  States.  But  an  entirely  different  con- 
stitutional power  is  invoked  by  section  111  of  the  national -defense 
act.  That  section  provides  for  the  draft  of  the  members  of  the 
militia  into  the  Army  of  the  United  States  for  general  war  purposes. 
There  the  constitutional  power  of  Congress  k)  raise  and  support 
armies  is  invoked,  and  in  such  a  case  the  members  of  the  National 
Guard  are  drafted  not  as  members  of  the  National  Guard  or  militia, 
nor  do  they  serve  as  militia,  but  as  members  of  the  Army  of  the 
United  States.  There  is  no  such  thing,  then,  as  drafting  the  National 
Guard  into  the  Federal  service  as  such;  only  its  members  as  indi- 
vidual citizens  are  drafted.  The  National  Guard,  with  its  officers, 
its  organizations,  and  its  organizational  relations,  is  not  drafted. 
That  this  is  so  the  act  clearly  recognizes.  It  provides  for  the  draft 
of  "  any  or  all  members  "  of  the  National  Guard  and  of  the  National 
Guard  Reserve.  It  refers  to  the  members  of  the  National  Guard  as 
"  persons  so  drafted."  It  requires  that  the  persons  so  drafted  "  shall 
be  embodied  in  organizations  corresponding  as  far  as  practical  to 
those  of  the  Regular  Army,  or  that  they  be  otherwise  assigned  as  the 
President  may  direct."  It  provides  for  the  commissioning,  by  the 
President,  of  the  officers  of  said  organizations;  and,  most  potent  of 
all,  provides  that  "  all  persons  so  drafted  shall  from  the  date  of  their 
drait  stand  discharged  from  the  militia."  There  is  absolutely  no  con- 
nection, in  the  eyes  of  the  law,  between  the  status  which  an  individual 
occupies  as  a  member  of  the  National  Guard  and  the  status  which  he 
occupies  after  he  has  been  drafted  into  the  service  of  the  United 
States,  and  there  is  no  connection  between  those  two  status.  The 
service  of  an  officer  in  the  former  capacity  is  not  service  as  a  commis- 
sioned officer  of  the  United  States,  nor  is  it  service  in  the  Army  of  the 
United  States.  The  service  of  an  officer  in  the  latter  capacity  is,  of 
course,  service  as  a  commissioned  officer  in  the  Army  of  the  United 
States.  Nor  is  this  distinction  obliterated  by  the  fact  that  section  1 
of  the  national-defense  act  includes  as  one  of  the  component  elements 
of  the  Army  of  the  United  States  "  the  National  Guard  while  in  the 
service  of  the  United  States."  The  National  Guard  called  for  consti- 
tional  purposes  into  the  service  of  the  United  States  is  obviously  not 
a  part  of  the  Army,  the  entire  act  preserves  the  distinction,  and  the 
phrase  quoted  can  have  reference  only  to  the  members  of  the  National 
Guard  drafted  into  the  Army. 
151738—20 5 


66        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL   OF  ARMY. 

It  is  obvious,  therefore,  that  service  as  a  commissioned  officer  of  the 
National  Guard  when  not  in  the  service  of  the  United  States,  or  when 
called  into  the  service  of  the  United  States  for  constitutional  pur- 
poses, can  not  constitute  the  service  which  section  1219  of  the  Re- 
vised Statutes  contemplates. 

6.  But  there  is  a  suggestion  that  the  one  hundred  and  nineteenth 
article  of  war,  wherein  it  establishes  an  order  of  class  precedence 
placing  the  militiaman  in  the  service  of  the  United  States  ahead  of 
the  volunteer,  operates  as  a  repeal  of  section  1219,  Revised  Statutes. 
But,  as  hereinbefore  adverted  to,  the  evident  purpose  of  the  one 
hundred  and  nineteenth  article  of  war  was  to  arrange  the  order  of 
precedence  of  the  several  classes  of  the  commissioned  officers  of  the 
forces  in  the  service  of  the  United  States,  and  not  to  determine  the 
rank  and  precedence  as  among  the  officers  of  the  different  classes. 
Whatever  inference  may  be  had  from  ranking  the  National  Guard 
called  into  the  service  of  the  United  States  ahead  of  the  volunteer 
as  a  class,  that  inference  can  not  go  so  far  as  to  operate  as  a  repeal 
of  section  1219,  Revised  Statutes.  The  sections  can  stand  together. 
Indeed,  considering  their  different  purposes,  there  is  no  conflict  be- 
tween them.  They  are  not  even  in  pari  materia,  and  there  can  not 
be  found  the  slightest  authority  among  all  the  principles  of  statutory 
construction  for  holding  that  section  1219,  Revised  Statutes,  was 
in  the  least  impaired  by  the  change  of  precedence  in  class  in  the  one 
hundred  and  nineteenth  article  of  war.  If  those  who  framed  the 
new  one  hundred  and  nineteenth  article  had  intended  to  accomplish 
what  some  think  they  did  accomplish  by  that  article,  they  should 
have  amended  section  1219  of  the  Revised  Statutes. 

7.  I  know  there  was  an  expression  in  a  recent  opinion  by  this  office 
upon  the  same  subject  which  tends  to  confuse  the  distinction  between 
an  officer  of  the  National  Guard  who  had  been  drafted  as  an  indi- 
vidual into  the  Army  of  the  United  States  and  thereupon  appointed 
by  the  President  as  an  officer,  and  his  status  as  an  officer  of  the  Na- 
tional Guard  called  into  the  Federal  service  as  such,  but  that  expres- 
sion was  inadvertent,  and  the  attention  of  the  office  was  not  especially 
directed  to  it.  And,  further,  in  an  opinion  by  this  office  dated  No- 
vember 16,  1916,  it  was  said  that  service  as  a  commissioned  officer  of 
the  National  Guard  called  into  the  service  of  the  United  States  was 
commissioned  service  within  the  meaning  of  said  section  1219,  Re- 
vised Statutes,  but  for  the  reasons  hereinbefore  advanced,  in  my 
j  udgment  that  opinion  of  this  office  was  clearly  wrong  and  proceeded 
upon  erroneous  reasons.  The  reasoning  there  employed  was  that  the 
term  "  volunteer  forces  "  as  used  therein  had  reference  to  all  forces 
in  the  actual  service  of  the  United  States  other  than  the  Regular 
Army.  But  this  reasoning  is  beside  the  point,  as  the  statute  itself 
requires  service  as  a  commissioned  officer  of  the  United  States,  and 
the  distinction  made  in  the  concluding  sentence  of  the  section  is  for 
the  purpose  of  establishing  a  parity  for  the  purpose  between  service 
in  the  Regular  Army  and  in  the  Volunteers,  and  not  for  the  purpose 
of  including  within  the  service  defined  by  the  statute  any  service  not 
rendered  as  a  commissioned  officer  of  the  United  States.  But  that 
reasoning  is  otherwise  erroneous.  The  term  "  volunteer  forces  "  as 
there  used  could  not  have  included  service  in  the  Organized  Militia 
called  in  the  service  of  the  United  States,  for  the  statutes  as  they 
existed  at  that  time,  and  as  they  still  exist,  make  a  specific  distinction 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OP  ARMY.        67 

between  the  "  volunteer  forces  "  and  the  militia  called  into  the  serv- 
ice of  the  United  States.  See  the  old  one  hundred  and  twenty-fourth 
article  of  war  (as  well  as  the  present  one  hundred  and  nineteenth 
article  of  war).  That  article  established  the  order  of  precedence  of 
the  several  classes  as  Regulars,  Volunteers,  and  the  Militia,  called 
into  the  service  of  the  United  States  in  the  order  named.  So  the  law 
remained  until  the  article  was  amended  in  1910,  so  as  to  exchange 
the  position  of  tlie  Volunteers  and  the  Organized  Militia  in  the  serv- 
ice of  the  United  States  and  place  the  Organized  Militia  so  it  would 
have  rank  and  precedence  as  a  class  over  the  Volunteers;  and,  of 
course,  the  one  hundred  and  nineteenth  article  of  war  does  no  more 
than  preserve  that  precedence.  While  the  order  of  precedence  as 
between  classes  was  changed,  section  1219  of  the  Revised  Statutes, 
establishing  rank  within  classes,  remained  amended. 

8.  As  another  reason  this  office  said : 

"  The  National  Guard  in  the  service  of  the  United  States  during 
the  last  few  months  has  served  in  the  same  capacity  as  would  any 
volunteer  forces  under  the  same  circumstances,  and  the  benefits  of 
training  incident  thereto  have  presumably  been  equal  to  those  which 
would  have  obtained  in  a  volunteer  force  of  the  strictly  legal  char- 
acter." 

But  there  the  opinion  distinctly  enters  the  field  of  legislation. 
Besides,  that  reasoning  involves  a  fact  which  may  be  open  to  dispute. 
Moreover,  as  a  legal  concept,  the  distinction  between  the  volunteer 
and  the  National  Guardsman  called  into  the  service  of  the  United 
States  for  constitutional  purposes  can  not  be  thus  dismissed.  The 
volunteer  was  a  part  of  the  Army  of  the  United  States ;  the  National 
Guardsman  under  those  circumstances  is  not.  The  volunteer  was  sub- 
ject to  the  performance  of  military  duty  the  world  over;  the  National 
Guardsman  only  within  the  territorial  limits  of  the  United  States. 
The  primary  purpose  of  the  one  was  to  fight  the  battles  of  this  country 
wherever  the  war  might  be  waged ;  the  primary  function  of  the  other 
is  to  preserve  the  peace  and  repel  invasion.  True  it  is  that  when 
engaged  in  the  same  theater  the  officer  called  into  the  service  for 
constitutional  purposes  and  the  officer  who  has  been  appointed  in  the 
drafted  forces  now  rank  together,  and  both  rank  the  volunteer  in  the 
same  theater,  and  both  rank  behind  the  regular.  But  when  the  officer 
of  the  National  Guard  called  into  the  service  of  the  United  States 
figures  in  the  classification,  the  military  forces  are  operating  at  home. 
When  thus  operating  there  could  in  fact  be  cogent  reasons  for  ranking 
the  National  Guardsman  as  a  class  ahead  of  the  volunteers.  The 
law  requires  that  in  such  circumstances  the  National  Guardsman  shall 
be  called  out  first.  While  thus  engaged  in  defense  of  the  home  soil, 
placed  there  by  virtue  of  his  position  as  a  National  Guardsman,  in 
advance  of  the  volunteer,  whose  primary  purpose  is  not  ordinarily 
for  such  local  defense,  his  order  of  precedence  ahead  of  the  volunteer 
may  for  those  reasons  alone  be  justified.  It  does  not  follow,  however, 
that  when  the  officer  of  the  National  Guard  is  divested  of  his  status 
as  a  National  Guardsman  and  is  no  longer  serving  as  such,  but  is 
appointed  to  and  serving  in  the  Army  of  the  United  States,  that  he 
should  be  permitted  to  count  the  service  which  was  not  rendered  in 
the  establishment  to  which  he  has  been  appointed.  I  am  reminded 
also  that  National  Guard  officers  drafted  into  the  Army  of  the  United 
States  have  been  held  by  the  comptroller  to  be  entitled  to  comit  their 


68        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

service  in  the  National  Guard,  for  purposes  of  computing  longevity 
pay,  but  that  is  beside  the  question.  Rank  here  is  a  mere  matter  of 
the  statute,  to  be  determined  under  the  statute  and  not  by  general 
considerations  of  service  and  compensation  therefor. 

9.  For  the  reasons  herein  advanced  I  am  convinced  that  an  officer 
of  the  Army  of  the  United  States  may  not  count  his  commissioned 
service  in  the  National  Guard  when  called  into  the  service  of  the 
United  States  for  constitutional  purposes  in  order  to  establish  his 
rank  as  over  other  officers  of  the  same  grade  and  date  of  appointment 
who  have  had  former  commissioned  service  as  an  officer  in  the  Army 
of  the  United  States. 

BANE  II:   Method  of  determining. 

Under  the  thirty -eighth  section  of  the  national-defense  act  of  June 
o,  1916,  and  the  one  hundred  and  nineteenth  article  of  war,  captains 
in  the  Regular  Army  assigned  to  active  duty  as  junior  military 
aviators  and  automatically  thereby  obtaining  the  rank  of  major  out- 
rank and  have  precedence  over  officers  of  the  same  grade  in  any 
forces  drafted  or  called  into  the  service  of  the  United  States,  such  as 
the  Officers'  Reserve  Corps. 

Ops.  J.  A.  G.  82-200,  Oct.  12,  1917. 

STATE  LAWS :   Applicability  of,  to  Federal  operations. 

In  connection  with  certain  construction  work  on  a  military  reser- 
vation by  a  contractor,  the  State  authorities  called  .upon  the  con- 
structing quartermaster  to  make  a  deposit  with  the  State  treasurer 
of  1^  per  cent  of  the  pay  of  the  workmen  engaged  in  hazardous 
work — upon  scaffolding  and  the  like — in  accordance  with  the  re- 
quirements of  the  State  law. 

Held^  That  the  State  authorities  were  without  jurisdiction  to  re- 
quire the  deposit  demanded,  for  the  reason  that  the  operations  of 
the  Federal  Government  are  entirely  beyond  the  power  of  State 
regulation ;  and  for  the  further  reason  that  the  work  in  question  was 
carried  on  within  a  military  reservation  over  which  the  State  had 
ceded  its  jurisdiction. 

Ops.  J.  A.  G.  76-050,  Sept.  5, 1917. 

UNTFORM  I :  Right  of  reserve  officers  to  wear. 

A  reserve  officer  not  called  into  active  duty  is  not  authorized  to 
wear  the  uniform  of  the  United  States  Army. 
Ops.  J.  A.  G.  96-140,  Oct.  30,  1917. 

UNIFORM  I :   Right  of  Home  Guards  to  wear. 

Home  Guards  may  not,  without  authority  therefor  from  the  Sec- 
retary of  War,  wear  any  uniform  which  bears  a  prohibited  similarity 
to  the  uniform  of  the  United  States;  but  the  Secretary  of  War  has 
power  to  grant  such  authority  on  condition  that  the  uniform  bear 
some  mark  or  insignia  distinguishing  it  from  the  uniform  pre- 
scribed for  the  United  States  Army. 

Ops.  J.  A.  G.  58-980,  Oct.  17,  1917. 

WAR  I,  C :   War  powers  of  Executive. 

The  Executive  has  power  in  time  of  war,  when  reasonable  necessity 
PTi^^tc;  thp.rpfor.  to  take  the  necessary  means  to  prevent  the  flying 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.        69 

of  aircraft  during  war,  except  such  as  is  permitted  by  the  War 
Department. 

Ops.  J.  A.  G.  6-228.1,  Oct.  11,  1917. 


NOTES  ON  ADMINISTRATION  OF  MILITARY  JUSTICE. 
SENTENCES:  Dishonorable  discharge. 

In  a  recent  case  the  court  imposed  a  sentence  of  dishonorable  dis- 
charge, total  forfeitures,  and  confinement  at  hard  labor  for  two  years 
(mitigated  to  one  year  by  the  reviewing  authority)  upon  a  soldier 
convicted  of  having  "a  rusty  pistol  for  inspection"  and  failing  "to 
clean  his  pistol"  after  having  oeen  ^'directed"  and  "having  received 
a  lawful  order"  to  do  so.  The  Judge  Advocate  General,  in  recom- 
mending that  the  unexecuted  portion  of  the  sentence  be  remitted 
and  that  the  soldier  be  restored  to  duty  upon  his  written  application 
therefor  or  be  allowed  to  reenlist  if  he  so  desires,  made  the  following 
comment : 

"In  time  of  war,  when  the  Nation  is  straining  every  nerve  to  build 
up  a  large  and  efficient  Army  and  is  even  resorting  to  a  selective 
draft  for  the  purpose  of  procuring  men,  it  seems  incongruous  and 
inconsistent  to  impose  a  sentence  of  dishonorable  discharge  for  such 
an  offense  as  is  shown  to  have  been  committed  in  this  case.  To  re- 
quire the  Government  to  guard  and  subsist  this  man  for  a  year  while 
he  performs  no  service,  in  face  of  the  fact  that  his  offense  could  have 
be«n  more  effectively  punished  by  disciplinary  measures  not  involv- 
ing dishonorable  discharge,  is  to  impose  an  unnecessary  burden  upon 
the  Government  and  possibly  to  subject  some  other  citizen  to  com- 
pulsory military  service  in  his  stead." 

TRIAL:  Evidence;  Improper  questions. 

In  several  recent  cases  each  of  the  judge  advocates,  in  begin- 
ning the  examination  of  witnesses,  propounded  a  general  question 
practically  involving  a  verbatim  reading  of  the  charges  and  specifica- 
tions and  concluding  with  a  request  that  the  witness  state  to  the 
court  what  he  knows  about  the  case.  Such  practice  is  loose  and  ob- 
jectionable, as  encouraging  irrelevant  and  hearsay  testimony,  and 
should  be  discontinued,  as  it  constitutes  a  leading  of  the  witness. 
He  is  thus  instructed  as  to  the  particulars  about  which  he  is  to  testify 
and  the  charge  he  is  expected  to  substantiate.  A  witness  should 
properly  be  examined  on  specific  interrogatories  and  not  be  called 
upon  to  make  a  general  statement  of  what  he  knows  about  the  matter 
under  investigation  in  answer  to  a  single  general  (juestion.  (Dig. 
Ops.  J.  A.  G.  1912,  531,  note  2.) 

CHARGES  OF  OFFENSES. 

The  review  in  this  office  of  records  of  trial  by  general  court-martial 
discloses  a  quite  general  practice  of  bringing  charges  for  offenses 
committed  prior  to  March  1,  1917,  under  the  new  Articles  of  War, 
which  became  effective  on  that  date.  Especially  is  this  true  with 
respect  to  charges  of  desertion. 

Section  5  of  the  act  of  August  29, 1916,  containing  the  new  Articles 
of  War,  provides  for  the  continuance  in  force  of  the  old  articles  for 
the  prosecution  of  offenses  committed  prior  to  March  1, 1917.. 


70        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL   OF  ARMY. 

While  the  error  referred  to  above  is  not  fatal  to  the  validity  of  the 
trial,  the  practice  of  laying  charges  under  the  new  articles  for  offenses 
committed  prior  to  their  taking  effect  is  irregular  and  should  be  dis- 
continued. For  all  offenses  committed  prior  to  March  1,  1917,  the 
charges  should  be  brought  under  the  old  articles. 


DECISIONS   OF   COURTS. 

SELECTIVE  DRAFT  ACT :    Constitutionality. 

Maurice  Sugar  and  others  wer3  indicted  for  conspiracy  to  aid  and 
procure  persons  to  violate  the  act  of  May  18,  1917.  On  motion  to 
quash  the  indic^tiiient,  the  court  held  that  the  act  does  not  violate  the 
thirteenth  nmendment  forbidding  involuntary  servitude;  that  it  does 
not  violate  the  fourteenth  amendment  forbidding  abridgment  of 
privileges  or  immunities  of  citizens ;  that  it  does  not  violate  the  fifth 
amendment,  or  the  constitutional  inhibition  of  the  delegation  of 
legislative  or  judicial  powers  to  an  executive  officer;  that  the  provi- 
sion for  the  raising  of  an  army  by  draft  is  a  proper  exercise  of  the 
power  of  Congress  to  raise  and  support  armies;  that  the  drafting 
of  the  National  Guard  does  not  call  forth  the  State  militia  as  such; 
and  that  the  act  is  constitutional.  United  States  v.  Sugar^  U.  S. 
Dis.  Ct.  E.  D.  Mich.  July  10,  1917,  243  Fed.  423. 

John  Story  was  imprisoned  under  commitment  for  unlawfully 
failing  to  register  for  military  duty  as  required  by  the  act  of  May 
18,  1917,  and  made  application  for  a  Avrit  of  habeas  corpus.  In 
denying  the  writ  the  court  held  the  act  constitutional,  overruling 
the  contention  that  its  provisions  violate  the  thirteenth  amendment. 
It  also  specifically  met  the  argument  that  the  petitioner  had  the 
right  to  remain  in  the  realm  and  could  not  be  drafted  for  service 
overseas  by  saying: 

"  But  our  organic  law  does  not  so  shackle  the  gigantic  energie , 
of  the  great  Republic.  After  the  enumeration  of  the  powers  of 
Congress,  among  them,  as  we  have  seen,  '  the  power  to  raise  and  sup- 
port armies,*  in  clause  18  of  article  1,  section  8,  it  provides  the 
power  'to  make  all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers,  and  all  other  powers 
vested  l)y  this  Constitution  in  the  Government  of  the  United  States, 
or  in  any  department  or  office  thereof.'  Here  is  the  great  reservoir, 
of  power  to  save  the  national  existence. 

"  It  is  said  that  there  is  no  express  power  to  send  armies  beyond 
the  sea.  True:  but  there  is  no  express  power  to  enact  the  criminal 
laws  of  the  United  States:  none  to  convey  the  public  domain,  to  build 
transcontinental  railroa^^  nor  to  construct  the  Isthmian  Canal:  nor 
to  create  the  Interstate  Commerce  Commission:  nor  to  declare  the 
Monroe  Doctrine;  nor  to  mt'ke  the  Louisinna  Purchase;  nor  to  buy 
Alaska ;  or  to  take  over  Porto  Rico  and  the  Philippines.  This  has 
all  been  done  under  the  great  power  to  promote  the  general  welfare, 
just  as  the  selective  armv  will  be  created  under  the  law  here  assailed 
'  to  provide  for  the  common  defense.'  And  beyond  and  above  all 
is  the  inherent  power  of  every  nation,  however  organized,  to  utilize 
its  every  man  and  its  every  energy  to  defend  its  liberty  and  to  de- 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ABMY.         71 

feat  the  migration  to  its  soil  of  mighty  nations  of  ferocious  war- 
riors, whose  barbarous  inhumanity  for  three  years  has  surpassed 
all  others  since  the  death  of  Attila,  the  Scourge  of  God." 
&tory  V.  Perkms,  U.  S.  Dist.  Ct.  S.  D.  Ga.,  243  Fed.,  997. 

SELECTIVE  DRAFT  ACT:  Constitutionality;  Finality  of  decisions  of  local 
boards. 

John  Angelus,  a  citizen  of  Austria,  claimed  exemption  before  a 
local  board  on  account  of  alienage  and  filed  an  affidavit  in  support 
thereof.  The  local  board  denied  his  claim,  and  the  district  board 
affirmed  the  action  of  the  local  board.  Angelus  brought  a  bill  in 
equity  to  restrain  the  local  board  from  certifying  his  name  to  the 
military  authorities  for  military  service.  The  district  court  dis- 
missed the  bill  for  lack  of  jurisdiction,  saying: 

"  I  think  Congress  had  no  intention  that  the  courts  should  inter- 
fere with  this  drafting  proposition.  It  is  a  military  measure  in 
time  of  war,  and  it  would  be  most  subversive  of  military  control 
and  the  proper  disposition  of  this  extremely  difficult  new  problem 
if  the  courts  should  interfere  in  this  situation.  If  Congress  had 
intended  that  the  courts  should  review  the  action  of  the  local  and 
district  boards,  it  would  have  so  provided,  and  unless  an  appellate 
court  says  to  the  contrary  I  am  of  the  opinion  that  a  district  court 
of  the  united  States  should  resolve  any  doubt  in  favor  of  the  Gov- 
ernment; any  other  view  might  tend  seriously  to  embarrass  the  work 
of  raising  an  army  with  its  manifold  difficulties  and  its  tremendous 
detail.  If  those  who  believe  they  are  entitled  to  exemption  were 
able  to  apply  to  the  courts,  it  would  be  a  most  disturbing  situa- 
tion and  directly  contrary  to  my  understanding  of  the  intent  of 
Congress.  Congress  intended  this  to  be  an  executive  measure,  to 
be  carried  out  by  the  executive  branch  of  the  Government  without 
interference  of  the  courts." 

Upon  appeal  the  Circuit  Court  of  Appeals  affirmed  the  order  of 
the  district  court,  holding  that,  under  the  power  to  raise  and  sup- 
port armies.  Congress  has  the  right  to  raise  armies  by  conscription, 
and  that  it  did  not  by  the  terms  of  the  act  unconstitutionally  dele- 
gate its  powers  to  the  President.  As  to  the  proper  jurisdiction  of  the 
local  and  district  boards,  the  court  said: 

"  But  it  is  said  that  the  act  is  unconstitutional  in  that  it  deprives 
the  complainant  of  his  liberty  without  due  process  of  law,  contrary 
to  the  fifth  amendment  of  the  Constitution,  which  declares  that  no 
person  shall  be  deprived  of  life,  liberty,  or  property  without  due 
process  of  law.  The  Supreme  Court  has,  however,  held  that  a 
judicial  trial  does  not  prevent  in  every  case.  Murray^ s  Lessee  v. 
Hoboken  Land  <&  Improve'irient  Co.^  18  How.,  272,  280,  1855.  And 
in  United  States  v.  Ju  Tmj,  198  U.  S.,  253,  263,  1905,  the  court, 
speaking  through  Mr.  Justice  Holmes  respecting  the  Chinese  ex- 
clusion act,  under  which  the  decision  of  the  Department  of  Labor 
is  final  as  to  the  exclusion,  said:  'If  for  the  purpose  of  argument 
we  assume  that  the  fifth  amendment  applies  to  him  and  that  to 
deny  entrance  to  a  citizen  is  to  deprive  him  of  liberty,  we  never- 
theless are  of  the  opinion  that  with  regard  to  him  due  process  of 
law  does  not  require  a  judicial  trial.'  That  the  decision  of  the 
question  whether  a  person  of  Chinese  descent  was  bom  in  the  United 
States  and  therefore  entitled  to  enter  the  country,  or  whether  he 


72        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENEBAL  OF  ARMY 

was  born  in  China  and  under  the  exckision  act  not  entitled  to  enter, 
may  be  intrusted  to  an  executive  officer  whose  decision  is  final  and 
that  it  is  due  process  of  law,  is  established  law.  We  see  no  reason 
why  the  same  doctrine  is  not  equally  applicable  to  the  case  in  hand. 
And  we  therefore  hold  that  the  complainant  is  not  deprived  of 
due  process  of  law  by  being  compelled  to  submit  to  the  final  decision 
of  the  local  and  district  boards  the  question  whether  he  is  a  subject 
of  Austria-Hungary  and  whether  he  has  not  declared  his  intention 
to  become  a  citizen  of  the  United  States. 

******* 

"  If  the  complainant  is,  as  he  alleges,  a  subject  of  Austria-Hungary 
and  has  never  declared  his  intention  to  become  a  citizen  of  the  United 
States,  as  he  also  alleges,  it  is  perfectly  clear  that  he  is  not  subject 
to  the  draft.  Whether  his  allegations  in  this  respect  are  true  must, 
however,  be  determined  in  the  manner  prescribed  by  the  act. 

"  It  appears  from  the  allegations  of  the  complaint  that  the  com- 
plainant filed  an  affidavit  claiming  exemption  by  reason  of  the  fact 
that  he  was  an  alien  and  that  the  local  board  denied  his  application 
and  that  he  appealed  to  the  district  board,  which  affirmed  the  local 
board.  It  thus  appears  that  the  complainant  was  heard,  and  it  is 
nowhere  alleged  that  he  was  denied  a  full  hearing  or  that  the  board 
rejected  or  refused  to  consider  any  evidence  that  he  was  entitled  to 
present.  In  the  absence  of  such  a  showing  we  have  no  doubt  that  the 
decision  of  the  board  is  final  and  can  not  be  interfered  with  by  the 
courts. 

"  We  do  not,  however,  agree  with  the  statement  of  the  district  judge 
heretofore  quoted  that  there  can  be  no  interference  of  the  courts  in  the 
action  of  these  boards.  We  think  a  decision  of  the  boards  is  final  only 
♦vhere  the  board  has  proceeded  in  due  form  and  where  the  party  in- 
volved is  given  a  fair  opportunity  to  be  heard  and  to  present  his  evi- 
dence. But  if  an  opportunity  to  be  heard  should  be  denied,  there  can 
be  no  doubt  as  to  the  right  of  the  aggrieved  party  to  come  into  the 
courts  for  the  protection  of  his  rights.  And  we  do  not  believe  that 
the  district  judge  meant  to  say  that  a  decision  must  be  regarded  as  final 
under  such  circumstances. 

"The  law  courts  have  a  general  superintending  control  by  certi- 
orara  over  all  inferior  tribunals  acting  in  a  judicial  or  quasi  judicial 
character.  And  jurisdiction  is  not  entirely  taken  away  by  the  words 
of  a  statute  which  declares  that  the  judgment  of  the  inferior  tribunal 
shall  be  final. 

******* 

"  There  can  be  no  doubt,  therefore,  that  under  the  conscription 
act,  where  a  board  has  denied  a  full  and  fair  hearing  to  an  indi- 
vidual claiming  exemption  from  military  service,  he  might,  if  re- 
strained of  his  liberty,  sue  out  a  writ  of  habeas  corpus  and  obtain 
his  liberty. 

"  But  whatever  remedy  the  complainant  may  have  or  not  have 
there  can  be  no  doubt  that  he  is  not  entitled  to  the  relief  he  asks 
in  his  bill  of  complaint.     *     *     * 

"  While  disagreehig,  therefore,  with  the  opinion  expressed  by 
the  district  judge  that  the  courts  can  not  interfere  with  the  action 
of  the  boards  and  holding  as  we  do  that  the  civil  courts  can  afford 
relief  from  orders  made  by  such  boards  in  any  case  where  it  is 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.         73 

shown  that  their  proceedings  have  been  without  or  in  excess  of 
their  jurisdiction  or  have  been  so  manifestly  unfair  as  to  prevent 
a  fair  investigation,  or  that  there  has  been  a  manifest  abuse  of  the 
discretion  with  which  they  are  invested  under  the  act,  we  never- 
theless approve  the  conclusion  he  reached  that  the  bill  should  be 
dismissed." 

Angelus  v.  Sullivan,  U.  S.  C.  C.  A.  2d  Circ.  October,  1917, 45  Wash. 
L.  Rep.  691. 

SELECTIVE  DRAFT  ACT:   Exemptions. 

Held,  That  a  person  who  enlisted  in  the  Regular  Army  for  seven 
years  in  the  year  1914  and  purchased  his  release  and  was  honorably 
discharged  in  April,  1916,  was  not  exempt  from  the  draft ;  that  the 
act  of  May  18,  1917,  specifies  the  exempted  classes  in  clear  and  un- 
ambiguous language,  and  ought  not  to  be  enlarged  by  judicial  con- 
struction. The  petition  for  the  writ  of  habeas  corpus  was  accord- 
ingly dismissed. 

Re  Jack  Cohen,  decided  Oct.  17,  1917,  by  U.  S.  District  Court  for 
District  of  Mass. 

Blackington  enlisted  in  the  National  Guard.  Although  he  was 
uelow  the  minimum  height  and  was  suffering  from  a  depressed 
fracture  of  the  skull,  he  was  certified  by  the  medical  examiner  as 
being  above  height  and  fit  for  military  service.  This  certification 
was  made  by  the  medical  examiner  through  personal  malice  against 
Blackington.  Blackington  was  drafted  into  the  Federal  service  as 
a  member  of  the  National  Guard  and  was  passed  by  the  regular 
medical  examiners.  Held,  That  although  Blackington  actually  was 
and  is  unfit  for  military  service,  he  has  no  ground  for  complaint. 
The  petition  for  writ  of  habeas  corpus  was  therefore  dismissed  and 
the  writ  discharged. 

Re  Carl  Blackington,  decided  Oct.  17, 1917,  by  U.  S.  District  Court, 
District  of  Mass. 

PERIOD  OF  ENLISTMENT:  National  defense  act;  Effect  of  unauthorized 
furlough. 

Roach  enlisted  on  April  24,  1914,  in  the  Alabama  National  Guard 
for  the  period  of  three  years.  On  June  29,  1916,  he  took  the  oath 
prescribed  by  section  70  of  the  national  defense  act.  On  July  1, 
1916,  the  company  of  which  Roach  was  a  member  w^as  mustered  into 
the  service  of  the  United  States.  On  April  24,  1917,  Roach  requested 
to  be  furloughed  to  the  National  Guard  Reserve,  but  his  papers  were 
not  propery  made  out.  He  continued  to  do  duty  until  June  22,  1917, 
when  his  company  commander  again  sent  a  request  that  Roach  be 
furloughed  to  the  Reserve.  While  awaiting  action  on  the  request 
the  company  commander  permitted  him  to  surrender  all  Government 
property,  gave  him  transportation  to  his  home,  and  directed  him  to 
go  there  and  await  receipt  of  papers  evidencing  his  furlough.  On 
July  26,  1917,  Roach's  request  for  furlough  to  the  Reserve  was  re- 
turned from  headquarters  disapproved.  Shortly  thereafter,  and 
prior  to  August  5,  1917,  Roach  was  informed  that  his  request  for 
furlough  had  been  denied  and  was  ordered  to  report  back  to  his 
company  for  service.  This  he  declined  to  do,  and  had  an  alterca- 
tion with  the  officer  who  ordered  him  to  return  to  his  company.    He 


74        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

was  placed  in  the  Montgomery  County  jail  under  arrest  pending  his 
trial  by  military  authorities  on  the  charge  of  striking  a  superior 
officer. 

He  secured  a  writ  of  habeas  corpus.  The  return  of  the  sheriff 
to  the  writ  showed  that  he  was  holding  Roach  under  the  circumstances 
above  stated. 

Held^  That  under  the  provisions  of  the  national  defense  act  an 
enlisted  man  is  not  automatically  furloughed  to  the  Reserve  upoi) 
the  expiration  of  his  enlistment;  that  the  acts  of  the  company  cap- 
tain without  the  approval  of  the  War  Department  could  not  operate 
as  a  discharge  of  Roach  or  as  a  furlough  to  the  Reserve:  and  that 
Roach  be  remanded  to  the  custody  of  the  United  States  military 
authorities  and  his  petition  for  discharge  on  habeas  corpus  be  denied 
and  dismissed. 

Ex  pm-te  Roach,  U.  S.  Dist.  Ct.  N.  D.  Ala.  Aug.  14,  1917,  244 
Fed.  625. 

SELECTIVE    DRAFT   ACT:   Draft    of    alien   minor    enlisted   in    National 
Guard;  jurisdiction  of  civil  courts. 

Hackenberg,  a  native  of  Austria,  who  came  to  the  United  States 
in  June,  1914,  enlisted  in  June,  1915,  in  the  National  Guard  of  Ohio, 
declaring  himself  to  be  21  years  of  age.  On  July  2, 1916,  he  took  the 
Federal  enlistment  oath  prescribed  by  section  70  of  the  national 
defense  act,  after  his  company  and  regiment  had  responded  to  the 
mobilization  order  of  the  President  for  service  on  the  Mexican  bor- 
der. He  was  mustered  out  of  the  Federal  service  on  March  2,  1917. 
On  July  10,  1917,  he  was  called  into  Federal  service,  pursuant  to 
ihe  second  paragraph  of  the  selective  draft  act  of  May  18,  1917,  and 
reported  for  duty.  On  July  30  he  was  placed  under  arrest,  and  on 
August  3  the  charge  of  violating  the  fifty-fourth  article  of  war  by 
fraudulently  enlisting  was  placed  against  him.  Hackenberg  was  18 
years  of  age  when  he  enlisted;  his  widowed  mother,  who  was  in 
Austria  at  the  time,  knew  nothing  thereof,  and  is  dependent  upon 
him  for  support.  On  his  behalf  one  Dostal  made  application  for  a 
writ  of  habeas  corpus.  Respondent's  answer  and  the  testimony  given 
at  the  hearing  developed  the  above  facts.  The  court,  in  dismissing 
the  petition,  held  as  shown  in  the  following  head  notes: 

"As  national  defense  act,  June  3,  1916,  permits  the  enlisting  of  a 
minor  over  the  age  of  18  without  the  written  consent  of  his  parent  or 
guardian,  where  one  over  18  and  under  21,  who  had  enlisted  prior  to 
the  passage  of  that  act,  subsequently  took  the  Federal  enlistment  oath 
prescribed  by  section  70  thereof,  the  defects  in  his  original  enlistment 
were  immaterial,  and  any  right  of  the  parent  or  guardian  to  reclaiui 
his  cutody  or  control  was  extinguished. 

"  An  alien,  offering  to  enlist  and  accepted  as  a  soldier,  can  not 
avoid  his  contract  of  enlistment,  and  thereby  escape  liability  for 
service  or  to  punishment,  especially  as  Comp.  St.  1916,  sec.  1888, 
providing  that  no  person  who  is  not  a  citizen,  or  who  has  not  made  a 
legal  declaration  of  his  intention  to  become  a  citizen,  shall  be  enlisted 
for  a  first  enlistment,  is  limited  to  enlistments  in  time  of  peace. 

"  There  is  nothing  in  the  treaty  between  the  United  States  and  the 
Government  of  Austro-Hungary  invalidating  an  enlistment  by  a  na- 
tive of  Austria. 

"  National  defense  act,  section  58  (Comp.  St.  1916,  sec.  3044)  pro- 
vides that  the  National  Guard  shall  consist  of  the  regularly  enlisted 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.         75 

militia,  etc.  Section  TO  provides  that  enlisted  men  in  the  National 
Guard,  whose  enlistment  contracts  contain  an  obligation  to  defend 
the  Constitution  of  the  United  States  and  obey  the  orders  of  the 
President,  shall  be  recognized  as  members  thereof,  and  that  others 
shall  not  be  so  recognized  until  they  have  signed  the  enlistment  con- 
tract and  taken  the  oath  therein  provided.  Section  111  (Comp.  St. 
1916,  sec.  3045)  and  selective  draft  law,  May  18,  1917,  authorize  the 
President  to  draft  all  members  of  the  National  Guard  into  the  mili- 
tary service  of  the  United  States.  Ueld^  that  an  order  of  the  Presi- 
dent, calling  a  company  and  regiment  of  the  National  (juard  into  the 
Federal  service,  made  a  member  of  such  company  and  regiment, 
whose  original  enlistment  contract  contained  the  obligation  pre- 
scribed by  section  70,  and  who,  when  previously  called  into  the  Fed- 
eral service,  had  taken  the  additional  oath  prescribed  by  that  section, 
a  soldier  of  the  United  States  Army  subject  to  military  trial  or 
punishment,  though  he  had  not  consented  to  be  mustered  into  the 
military  forces  of  the  United  States  under  such  order. 

"  Where  a  minor  enlists  without  the  written  consent  of  his  parent 
or  guardian  an  application  by  the  parent  or  guardian  for  his  release 
must  be  made  with  reasonable  diligence  after  acquiring  knowledge  of 
the  enlistment,  and  before  an  offense  has  been  committed  by  the 
minor,  and  after  an  offense  has  been  committed,  and  especially  after 
he  has  been  placed  under  arrest  and  charges  have  been  preferred 
against  him,  it  is  too  late  for  the  parent  or  guardian  to  oust  the  juris- 
diction of  the  military  authorities  by  an  application  for  a  writ  of 
habeas  corpus. 

"  That  an  enlisted  soldier  has  a  mother,  of  whom  he  is  the  only 
support,  does  not  make  void  his  contract  of  enlistment. 

"  One  who  enlisted  in  the  National  Guard,  was  accepted,  took 
the  prescribed  oath,  and  later  took  the  Federal  enlistment  oath, 
as  prescribed  by  national  defense  act,  June  3,  1916,  c.  134,  sec. 
70,  39  Stat.  20i  (Comp.  St.  1916,  sec.  3044i),  and  received  pay 
and  clothing  over  a  long  period  from  the  State  and  Nation,  is  a 
soldier,  subject  to  the  jurisdiction  of  a  military  tribunal  for  any 
offense  committed  against  military  law,  though  he  was  under  21 
when  he  enlisted,  and  enlisted  without  the  written  consent  of  his 
parent  or  guardian,  and  though  he  was  an  alien,  who  had  not  made 
the  declaration  of  his  intention  to  become  a  citizen,  and  though  he 
had  a  mother  dependent  upon  him  for  support. 

"If  a  military  tribunal  has  jurisdiction  to  try  a  person  charged 
with  an  offense  against  military  law,  the  civil  courts  can  not  inter- 
fere bv  writ  of  habeas  corpus." 

Ex  parte  Dostal,  Dist.  Ct.  N.  D.  Ohio,  Aug.  15,  1917,  243  Fed.  664. 

STATUS  or  NAVAL  OFFICER  FOR  PURPOSES  OF  COMPUTING  PAY. 

"Under  act  March  3,  1890,  c.  413,  sec.  13,  30  Stat.  1007  (Comp.  St. 
1916,  sec.  2818),  providing  that '  all  officers,  including  warrant  officers 
who  have  been  or  may  be  appointed  to  the  Navy  from  civil  life  shall 
on  the  day  of  appointment  be  credited,  for  computing  their  pay,  with 
five  years'  service,'  which  entitles  the  appointee  to  an  increased  rate  of 
pay,  an  enlisted  num  who  while  in  the  service  took  the  examination  for 
a  higher  position,  and  having  passed,  and  two  days  before  his  ap- 
pointment, and  when  it  was  practically  assured,  obtained  his  dis- 
charge from  the  service,  can  not  be  rated  as  an  appointee  from  civil 


76        DIGEST  OF  OPINIONS  JUDOE  ADVOCATE  GENEKAL  OF  ARMY. 

life  in  the  sense  of  the  statute,  but  his  appointment  must  be  consid- 
ered as  a  promotion  in  the  service. 

"  Where,  however,  such  officer  was  rated  as  an  appointee  from  civil 
life,  which  he  was  according  to  the  strict  letter  of  the  law,  for  a  num- 
ber of  years,  and  vouchers  for  the  increased  pay  were  approved,  he  is 
entitled  to  retain  such  pay  up  to  the  time  when  his  rating  was  cor- 
rected." 

United  States  v.  U,  S.  Fidelity  <&  Gucoranty  Co.,  U.  S.  Dist.  Ct. 
E.  D.  N.  Y.,  July  26,  1917,  244  Fed.  310. 

MILITIA:   National  Guard;  Veteran  Corps  of  Artillery. 

"  Under  Military  Law  (Consol.  Laws,  N.  Y.  c.  36),  section  235,  pro- 
viding that  no  person  belonging  to  the  active  militia  of  the  State 
shall  be  arrested  on  any  civil  process  while  going  to,  remaining  at,  or 
returning  from  any  place  at  which  he  may  be  required  to  attend  for 
military  duty,  and  section  5,  defining  the '  active  militia '  as  consisting 
of  the  military  forces  known  as  the  National  Guard  and  the  Naval 
Militia,  the  Veteran  Corps  of  Artillery  of  the  State  of  New  York  is 
neither  a  part  of  the  National  Guard  nor  of  the  Naval  Militia,  and  a 
colonel  commandant  thereof,  who  had  given  a  bond  for  the  jail  limits 
after  his  arrest  on  a  body  execution,  was  not  entitled  to  a  discharge 
from  custody  on  the  ground  of  his  exemption  from  arrest,  where  he 
was  not  attending  upon  military  duty,  merely  because  the  organiza- 
tion had  engaged  in  certain  preparedness  work." 

Andrews  v.  Gardiner,  166  N.  Y.  Supp.  933. 


BULLETIN  72. 

OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

APPROPRIATIONS:    Civilian  labor  for  police  duty. 

It  was  not  contemplated  in  any  appropriation  made  for  either  the 
Medical  Department  or  the  Quartermaster's  Corps  to  pay  for  civilian 
labor  to  do  police  duty  at  a  base  hospital.  Such  duty  should  be  done 
by  the  enlisted  personnel. 

Ops.  J.  A.  G.  230.14,  Nov.  12,  1917. 

APPROPRIATIONS  XXIV:   Expense  of  enforcing  regulation  under  sec- 
tions 12  and  13  of  the  draft  act. 

The  expense  of  conducting  investigations  and  procuring  evidence 
against  bootleggers,  drug  users,  and  prostitutes  for  violations  of  the 
regulations  under  the  draft  act  can  not  be  paid  from  the  appropria- 
tion for  "  Contingencies  of  the  Army."  Such  expense  should  be 
borne  bv  the  Department  of  Justice. 

Ops.  J.  A.  G.  250.11,  Nov.  26,  1917. 

APPROPRIATIONS:  Heat  and  light  for  Y.  M.  C.  A.  buildings. 

The  appropriation  for  furnishing  heat  and  light  for  buildings 
erected  at  private  cost  under  the  act  of  May  31, 1902,  is  not  available 
for  the  installation  of  heating  and  lighting  fixtures  in  Y.  M.  C.  A. 
buildings,  but  only  to  provide  the  consumable  supplies  necessary  for 
heating  and  lighting  same. 

Ops.  J.  A.  G.  412.1,  Nov.  2,  1917. 

APPROPRIATIONS :  Heat  and  light  for  Y.  W.  C.  A.  hostess  houses. 

The  appropriation  for  furnishing  heat  and  light  for  buildings 
erected  at  private  cost  under  the  act  of  May  31,  1902,  is  not  available 
for  furnishing  heat  or  light  for  hostess  houses  of  the  Y.  W.  C.  A. 

Ops.  J.  A.  G.  680.32,  Nov.  24,  1917. 

ARMY  I :   Composition  and  organization. 

There  is  no  legal  reason  why  enlisted  men  of  the  Eegular  Army, 
National  Guard,  National  Army,  or  other  divisions  of  the  Army 
may  not  be  regarded  as  interchangeable  or  why  they  should  not  all 
be  carried  on  the  same  muster  roll. 

Ops.  J.  A.  G.  220.33,  Nov.  1,  1917. 

ARMY  I  G.d:  Medical  Department  Dental  O.  R.  C. 

While  the  Dental  Corps  is  included  in  the  Medical  Department 
for  administrative  purposes,  it  has  independent  functions,  and  since 
the  act  of  October  6,  1917  (Public  86,  65th  Cong.),  makes  the  per- 
sonnel of  that  corps  the  same  as  that  of  the  Medical  Corps,  except 
as  to  number  per  thousand,  the  Dental  Corps  is  such  a  corps  as 
should  form  the  basis  of  an  organization  in  the  Officers'  Reserve 
Corps.     Subsection  2  of  section  1  of  Special  Regulations  43,  War 

77 


78        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

Department,  1917,  may  properly  be  amended  so  as  to  authorize  the 
commissioning  of  officers  in  the  Dental  Reserve  Corps  of  the  Medical 
Department  with  the  same  grades  and  percentages  within  the  grades 
as  are  permitted  by  law  for  the  Medical  Officers'  Reserve  Corps. 
Ops.  J.  A.  G.  211.25,  Nov.  9,  1917. 

ARMY:   Organization — Supply  sergeants. 

Provisions  for  supply  sergeants  for  any  organization  except  Engi- 
neers, unless  the  term  "  supply  sergeant "  is  qualified  by  other  lan- 
guage, must  be  construed  to  have  reference  to  supply  sergeants  of 
the  class  provided  for  companies,  troops,  and  batteries,  and  not  to 
battalion  supply  sergeants. 

Ops.  J.  A.  G.  322.56,  Nov.  15,  1917. 

ARMY  FIELD  CLERKS:   Service  prerequisite  to  allowances. 

Under  the  Army  appropriation  act  of  August  29,  1916,  Army 
field  clerks  after  12  years'  service,  3  years  of  which  shall  have  been 
on  detached  duty  away  from  permanent  station  or  on  duty  beyond 
the  continental  limits  "of  the  United  States,  or  both,  are  entitled  to 
certain  allowances.  In  computing  the  12  years'  service,  service  as 
an  enlisted  man  can  not  be  counted.  Service  as  headquarters  clerk 
prior  to  the  passage  of  the  act  and  as  an  Army  field  clerk  thereafter 
should  be  counted. 

Ops.  J.  A.  G.  241.1,  Nov.  12,  1917. 

ARTICLES  or  WAR  LIX,  C,  I:   Jurisdiction  of  civil  courts. 

The  civil  authorities  do  not  have  the  legal  right  to  hold  in  arrest 
for  misdemeanors  persons  in  the  military  service,  and  it  is  their 
duty,  upon  request,  to  surrender  such  persons  without  trial  to  the 
military  authorities.  The  Government  is  entitled  to  the  services  of 
its  soldiers,  and  local  courts  should  not  be  permitted  to  deprive  the 
Government  of  such  services.  Courts-martial  should  be  availed  of 
exclusively  for  the  trial  of  soldiers  who  offend  against  local  or 
Federal  liquor  laws. 

Ops.  J.  A.  G.  250.11,  NoA^  14,  1917. 

ARTICLES  OF  WAR  LXXXIII  C:   Limitations  of  sentences  by  summary- 
courts. 

The  forfeiture  of  pay  imposed  by  a  summary  court  under  the 
P'ourteenth  Article  of  War  may  be  extended  over  a  greater  period 
than  three  months,  provided  that  the  amount  forfeited  does  not 
exceed  the  amount  of  the  soldier's  pay  for  the  three  months  imme- 
diately succeeding  the  sentence.  As  a  matter  of  policy,  it  is  unwise 
to  protract  unduly  the  period  of  forfeiture. 

Ops.  J.  A.  G.  250.41,  Nov.  17,  1917. 

CIVILIAN  EMPLOYEES  XI  A :   Resignation  without  due*  notice. 

A  civilian  draftsman  in  the  office  of  the  Chief  of  Ordnance  can  not 
be  required  to  continue  in  service  against  his  will.  But  where  he 
resigns  and  leaves  without  reasonable  notice  the  record  may  show  the 
fact,  in  order  that  the  Civil  Service  Commission  may  apply  its  rule 
permitting  a  refusal  to  examine  or  certify  an  applicant  who^  within 
one  year  next  preceding  the  date  of  his  application,  has  resigned 
without  due  notice,  to  the  embarrassment  of  the  service. 

Ops.  J.  A.  G.  230.81,  Nov.  8,  1917. 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.         79 

CLAIMS  XII :   Discipline  IV,  B — Fees  for  taking  depositions. 

Where  the  law  of  the  place  where  a  deposition  is  taken  does  not  fix 
any  fees  therefor,  the  civil  officer  before  whom  a  deposition  is  taken 
for  use  before  a  court-martial  is  entitled  to  reasonable  compensation 
for  his  services. 

Ops.  J.  A.  G.  250.464,  Nov.  15,  1917. 

CLAIMS  IV,  XII,  P :   Damage  incident  to  operation  of  Army. 

Army  appropriation  act  of  May  12,  1917,  provides  for  the  payment 
of  claims  for  damages  to  and  loss  of  private  property  incident  to  the 
training,  practice,  and  operations  of  the  Army.  Claims  for  damages 
incident  to  the  operation  of  the  Army  are  claims  for  damages  which 
have  been  occasioned  by  an  act  done  in  connection  with  some  move- 
ment or  activity  of  the  Army,  and  not  in  connection  with  mere  main- 
tenance. Hence,  damages  caused  by  a  Government  motor  truck  not 
used  in  connection  with  movement  of  troops,  or  by  a  laundry  wagon 
of  a  post  laundry,  can  not  be  paid  out  of  this  appropriation. 

Ops.  J.  A.  G.  153,  Nov.  10, 1917;  152,  Nov.  15, 1917. 

CONTRACTS  XV :  By  oflBicer  or  employee  with  Government. 

Under  present  statutory  provisions  (sec.  41  of  Criminal  Code;  sec. 
3  of  act  of  Aug.  10,  1917)  and  Army  Regulations  (par.  521),  an  offi- 
cer or  employee  in  the  military  service  is  prohibited  from  acting  as 
an  officer  or  agent  of  the  Government  in  making  any  contract  or 
placing  any  order  with  a  firm  or  corporation  in  which  he  may  have 
a  pecuniary  interest,  and  from  inducing  or  advising  any  authorized 
officer  to  make  a  contract  or  place  an  order  with  such  firm  or  corpora- 
tion. Otherwise,  there  is  no  objection  to  an  officer  or  employee  in  the 
military  service  entering  into  contractual  relations  with  the  Govern- 
ment or  owning  an  interest  in  a  firm  or  corporation  which  enters  into 
contracts  with  the  Government. 

Ops.  J.  A.  G.  161.44,  Nov.  6,  7,  1917. 

CONTRACTS  III :   Emergency  purchases. 

All  purchases  of  military  supplies  are  now  emergency  purchases 
and  are  made  without  advertising.  Paragraph  554,  Army  Regula- 
tions, requires  a  report  of  all  such  purchases  exceeding  $100  to  be 
made  to  the  Secretary  of  War,  but  there  is  no  statutory  provision,  at 
present  applicable,  which  requires  such  a  report,  for,  so  far  as  section 
3709,  Revised  Statutes,  applies,  the  Secretary  of  War  has  approved 
such  purchases  in  advance  by  his  order  of  April  12,  1917,  and  the  act 
of  June  12,  1906,  has  no  operation  when  all  purchases  are  emergency 
purchases. 

Ops.  J.  A.  G.  400.123,  Nov.  26,  1917. 

DESERTION  III,  C :   Apprehension  and  delivery  of  deserters. 

Civilian  officers  authorized  by  law  to  arrest  offenders  have  power 
to  apprehend  and  deliver  deserters  to  the  military  authorities.  When 
they  have  once  arrested  a  deserter  they  may  deliver  him  to  any  desig- 
nated point,  regardless  of  State  or  other  jurisdictional  lines. 

Ops.  J.  A.  G.  251.211,  Nov.  16,  1917. 

DESERTION  VIII :  Articles  of  War  CIII — Limitations  of  action. 

Paragraph  125,  Army  Regulations,  and  paragraph  44,  Compila- 
tion of  General  Orders',  1915,  are  in  conflict  with  the  thirty-ninth 


80        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

article  of  war,  paragraph  148,  subdivision  d,  Manual  for  Courts- 
Martial,  1917,  regarding  the  statute  of  limitations  affecting  desertion. 
The  latter  are  controlling.  The  statute  begins  to  run  on  the  date 
of  the  commission  of  the  offense  and  continues  to  run  until  the  date 
of  arraignment  of  the  accused.  Its  running  is  suspended  during  the 
period  of  any  absence  of  the  accused  from  the  jurisdiction  of  the 
United  States  and  any  period  during  which  by  reason  of  some  mani- 
fest impediment  the  accused  was  not  amenable  to  military  justice. 
Ops.  J.  A.  G.  251.25,  Nov.  6,  1917. 

DESERTION  V,  D:   Reward — Reimbursement  from  deserter. 

There  is  no  statute  requiring  that  the  amount  of  the  reward  and 
other  expenses  incurred  for  the  apprehension  of  a  deserter  be  charged 
against  the  deserter.  The  requirement  of  paragraph  127,  Army 
Regulations,  may  be  waived  or  modified  in  the  discretion  of  the 
Secretary  of  War. 

Ops.  J.  A.  G.  251.211,  Nov.  1,  1\>17. 

DISCIPLINE  III,  XIV,  H:   Convening  authority  of  courts-martial — Presi- 
dent as  confirming  authority. 

Where  the  commanding  officer  of  a  tactical  division  serving  within 
the  territorial  limits  of  a  department  is  the  r.ccuser  or  prosecutor, 
the  duty  of  ordering  the  court-martial  devolves  upon  the  War  De- 
partment, since  such  tactical  divisions  have  been  withdrawn  from 
the  control  of  department  commanders.  And  where  an  officer  below 
the  rank  of  brigadier  general,  belonging  to  such  division,  is  sentenced 
to  dismissal,  the  proceedings  must  go  to  the  President  for  con- 
firmation. 

Ops.  J.  A.  G.  250.42  Nov.  21,  1917. 

DISCIPLINE  IX:   Procedure  of  courts-martial — Effect  of  irregularities. 

The  thirtieth  article  of  war  provides  that  when  the  court  requires 
the  legal  advice  of  the  judge  advocate,  it  shall  be  obtained  in  open 
court  in  the  presence  of  accused.  Article  37  provides  that  errors  of 
procedure  shall  not  invalidate  a  sentence  unless  the  proceedings 
show,  in  the  opinion  of  the  reviewing  authority,  that  the  rights  of 
the  accused  have  been  substantially  prejudiced.  Failure  to  have 
accused  present  at  a  session  where  legal  advice  of  the  judge  advocate 
was  obtained  is  not  material  unless  the  substantial  rights  of  the 
accused  have  been  injured. 

Ops.  J.  A.  G.  250.45,  Nov.  10,  1917. 

EIGHT-HOUR  LAW  VI:   Extraordinary  emergency. 

The  employment  by  the  Government  of  laborers  and  mechanics 
in  excess  of  eight  hours  per  day,  except  in  cases  of  extraordinary 
emergency,  is  prohibited.  Everything  necessary  to  be  done  to  assem- 
ble, care  for,  clothe,  shelter,  feed,  arm,  and  train  the  soldiers  of  the 
National  Army  is  of  immediate  and  imperative  necessity.  And  in 
the  employment  of  labor  to  carry  forward  any  or  all  of  these  pur- 
poses, and  in  declaring  in  connection  therewith  the  existence  of  an 
extraordinary  emergency,  a  very  wide  discretion  must  be  lodged  in 
those  officers  charged  with  the  performance  of  these  duties.  When 
such  extraordinary  emergency  is  declared,  report  should  be  made 
promptly  to  the  Secretary  of  War.     (A.  R.  731.) 

Ops.  J.  A.  G.  230.4423,  Nov.  16,  1917. 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.        81 

ENLISTMENT  II,  C :   Involuntary — Discharge  of  drafted  men. 

A  district  board  has  no  authority  to  reopen  the  case  of  a  man  who 
has  been  inducted  into  the  military  service ;  but  the  local  board  may 
reopen  his  case  upon  permission  or  direction  of  the  adjutant  general 
of  the  State.  If  upon  reopening  the  local  board  decides  that  the  man 
should  have  been  exempted,  it  will  so  notify  the  adjutant  general, 
who  will  in  turn  notify  the  commanding  officer  at  the  mobilization 
camp.  If  a  local  board  has,  through  error,  sent  a  man  to  a  mobiliza- 
tion camp  pending  his  appeal,  and  he  has  been  inducted  into  the 
military  service,  and  thereafter  he  presents  a  certificate  of  exemption 
from  the  district  board,  he  may  be  discharged  by  the  division  com- 
mander. Other  than  above  stated,  a  commanding  officer  or  division 
commander  has  no  authority  to  discharge  a  man  on  the  ground  that 
he  should  have  been  exempted  by  the  local  board. 

Ops.  J.  A.  G.  324.72,  Nov.  22,  1917. 

ENLISTMENT  II:   Involuntary — Method   of   correcting  rulings   of  local 
boards  erroneously  holding  men  for  service. 

The  decisions  of  local  boards  upon  claims  for  exemptions,  includ- 
ing those  based  upon  alienage,  are  conclusive.  Where  a  man  has 
been  erroneously  certified  for  service  through  error  of  law  or  noncul- 
pable  ignorance  of  the  registrant,  his  case  may  be  reopened  by  the 
local  board  upon  request  of  the  adjutant  general  of  the  State,  either 
on  his  own  motion  or  on  motion  of  the  military  authorities  or  of  the 
local  board.  Compiled  rulings  of  Provost  Marshal  General,  No. 
12,  M. 

Ops.  J.  A.  G.  014.311,  Nov.  2,  1917. 

ENLISTMENT  II:  Selective-draft  act — Registration  of  slackers. 

A  person  who  willfully  refuses  to  present  himself  for  registration 
or  to  submit  thereto,  as  provided  in  the  selective-draft  act,  should 
be  immediately  registered  and  thereafter  prosecuted  for  his  misde- 
meanor. It  would  defeat  the  purpose  of  the  act  were  the  involuntary 
registration  postponed  until  after  service  of  the  sentence  imposed  for 
the  commission  of  the  misdemeanor. 

Ops.  J.  A.  G.  324.71,  Nov.  10,  1917. 

ENLISTMENT    II:   Involuntary — Procedure    before    local    bodrds    under 
selective-draft  act. 

Local  boards  have  no  power  under  present  presidential  regula- 
tions to  compel  the  attendance  of  witnesses,  for  the  regulations  do 
not  contemplate  the  taking  of  oral  testimony,  but  require  the  presen- 
tation of  evidence  bv  affidavit. 

Ops.  J.  A.  G.  013*.26,  Nov.  5,  1917. 

ENLISTMENT  II,  A:   Involuntary — Induction  into  service. 

A  drafted  man  was  on  October  6  assigned  to  a  specified  company, 
on  October  13  was  reported  physically  fit,  on  October  25  was  re- 
jected as  physically  unfit,  and  in  the  evening  of  October  25  died. 
Ilelcl^  that  his  induction  into  the  militarj^  service  was  complete  be- 
fore October  25,  and  that  the  rejection  on  October  25  did  not,  under 
the  circumstances,  operate  as  a  discharge. 

Ops.  J.  A.  G.  220.46,  Nov.  20,  1917. 

151738—20 6 


82        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

ENLISTMENT  I,  B,  3:   Statutory  requirements — Eligibility  of  women. 

The  statutes  governing  enlistment  in  the  Army  do  not  authorize 
the  enlistment  of  women.  Consequently  women  may  not  be  enlisted 
in  the  Ordnance  Department. 

Ops.  J.  A.  G.  342,  Nov.  14,  1917. 

ENLISTMENT  I,  B,  3:   Statutory  requirements — Eligibility  for  Medical 
Enlisted  Reserve  Corps. 

Only  citizens  of  the  United  States  or  persons  who  have  declared 
their  intentions  to  become  citizens  of  the  United  States  are  eligible 
for  enlistments  in  the  Medical  Enlisted  Reserve  Corps.  Japanese 
and  Chinese  subjects  and  citizens  of  the  Philippine  Islands  are, 
therefore,  ineligible. 

Ops.  J.  A.  G.  342.18,  Nov.  24,  1917. 

FIELD  SERVICE :  Army  Nurse  Corps — Conimutation  of  quarters  and  sub- 
sistence. 

Field  service  is  a  term  of  which  the  military  mind  has  a  fairly 
accurate  conception,  although  it  is  not  easily  defined.  Going  to  the 
professional  books  and  the  field-service  regulations  and  the  drill 
regulations,  the  term  will  be  found  to  have  reference  not  only  to 
actual  service  in  campaign  or  in  action,  but  as  well  to  an  instructional 
service,  which,  though  instructional,  consists  of  the  practice  of  those 
exercises  and  duties  which  are  incident  to  campaign  or  action,  of  the 
application  of  tactical  principles  to  assumed  situations  with  respect 
to  an  imaginary,  outlined,  or  represented  enemy  or  a  particular 
objective.  As  applied  to  the  Nurse  Corps,  it  means  nothing  more 
than  the  discharge  of  duties  usually  and  ordinarily  connected  with 
and  discharged  by  a  nurse  in  a  base  hospital,  which,  as  its  name  im- 
plies, is  a  hospital  organized  for  actual  and  practical  service  with 
an  army  in  the  field.  Accordingly,  nurses  in  service  at  the  base  hos- 
pital of  a  cantonment  or  camp  of  the  National  Army  are  in  field 
service  and  are  not  entitled  to  commutation  of  quarters,  of  heat  or 
light,  or  of  subsistence. 

Ops.  J.  A.  G.  246.84,  Nov.  7,  1917,  citing  Ops.  J.  A.  G.  6-124.4, 
July  6,  1914,  and  24  Comp.  Dec.  106. 

GOVERNMENT  AGENCIES,  II,  C:  Limitations  on  business  of  post  ex- 
changes. 

Post  exchanges  can  not  act  as  agents  for  private  laundries,  for  a 
soldier's  pay  can  not  be  stopped  to  satisfy  a  claim  of  a  private  person 
or  business  concern.  There  is  no  legal  oJDJection  to  the  post  exchange 
hiring  the  laundry  done  by  a  private  laundry,  thus  becoming  the  real 
customer  of  the  laundry,  and  in  turn  charging  the  men  just  and 
reasonable  rates  for  having  their  washing  done. 

Ops.  J.  A.  G.  486.3,  Nov.  8,  1917. 

INCOME  TAX:   Commutation  of  quarters,  beat,  and  light. 

Money  received  as  commutation  for  quarters,  heat,  and  light  is 
income  within  the  meaning  of  the  income-tax  law. 
Ops.  J.  A.  G.  012.22,  Nov.  19,  1917. 

INTOXICANTS:   Selective-draft  act — Regulations  under  sections  12  and 
13. 

The  regulations  of  the  President  under  section  12  of  the  selective- 
draft  act  prohibiting  intoxicating  liquors  within  prescribed  distances 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.         83 

of  military  camps  do  not  apply  to  permanent  Regular  Army  posts. 
The  regulations  of  the  Secretary  of  War  under  section  13,  prohibit' 
ing  the  keeping  or  setting  up  houses  of  ill  fame,  brothels,  or  bawdy- 
houses  within  prescribed  distances  of  military  camps  do  apply  to 
Regular  Army  posts. 
Ops.  J.  A.  G.  220.46,  Nov.  7,  9, 1917. 

LINE  OF  DUTY  II  A,  1  b. 

The  presumption  is  that  injuries  received  while  a  soldier  is  in  ihe 
military  service  of  the  United  States  occur  in  the  line  of  duty  unle^ss 
they  were  received  while  he  was  absent  on  furlough  or  was  in  a  con- 
dition inconsistent  with  the  performance  of  ordinary  military  duty; 
Or  unless  they  were  received  in  consequence  of  willful  neglect  or 
immoral  conduct  of  the  injured.  Therefore,  where  the  evidence 
showed  only  that  a  soldier  of  good  habits,  on  post  guarding  a  rail- 
way bridge,  was  found  about  midnight  lying  unconscious  about  30 
feet  out  on  the  bridge,  severely  injured,  and  that  he  died  therefrom, 
a  finding  that  he  met  his  death  as  the  result  of  his  own  misconduct 
can  not  be  sustained.  So,  a  man  absent  on  a  five-hour  pass,  who  in 
returning  attempted  to  cross  the  track  of  a  railway  company  by 
climbing  between  two  cars  blocking  the  crossing,  and  who  was  in- 
jured by  the  sudden  starting  of  the  train,  was  properly  found  to 
have  been  injured  in  the  line  of  duty.  So,  a  man  absent  from  post 
on  a  10-hour  pass,  who  was  run  down  by  a  railway  train  while  walk- 
ing along  a  railway  trestle  where  soldiers  frequently  walked,  was 
injured  in  line  of  duty  where  the  evidence  showed  he  was  sober  and 
that  no  proper  warning  of  the  approach  of  the  train  was  given  by 
lights  or  by  bell  or  whistle. 

Ops.  J.  A.  G.  220.46,  Nov.  7,  9, 1917. 

MARINE  CORPS :   Detailed  in  Signal  Corps. 

A  member  of  the  Marine  Corps  detached  for  service  with  the 
Army  is  not,  under  the  national  defense  act,  eligible  for  detail  in  or 
attachment  to  the  aviation  section  of  the  Signal  Corps,  and  therefore 
can  not  receive  the  rating  of  junior  military  aviator. 

Ops.  J.  A.  G.  045.3,  Nov.  20, 1917. 

MILITARY  INSTRUCTION  II,  B:   Section  50,  national-defense  act. 

Sections  43  and  50  of  the  national- defense  act  contemplated  stand- 
ard courses  of  theoretical  and  practical  military  training  for  imits 
of  the  Reserve  Officers'  Training  Corps  at  educational  institutions 
of  at  least  three  hours  per  week  per  academic  year,  section  50  fixing 
the  completion  of  two  years'  academic  service  by  a  member  of  the 
senior  division  of  the  Reserve  Officers'  Training  Corps  as  a  condi- 
tion precedent  to  the  right  to  be  furnished  commutation  of  subsistence 
during  further  instruction.  Senate  joint  resolution  169,  public  35, 
Sixty-fourth  Congress,  first  session,  required  that  in  the  interpreta- 
tion of  said  section  50,  men  who  had  received  a  course  of  military 
training  substantially  equivalent  to  that  prescribed  by  the  regulations 
be  given  credit  therefor.  The  proper  interpretation  of  said  section 
50  as  affected  by  said  public  35  is  that  the  requirement  of  two  yeai^s' 
academic  service  can  not  be  satisfied  by  double  work  for  one  academic 
year.  (Ops.  J.  A.  G.  350.3,  Nov.  13,  1917.)  But  it  is  not  required 
that  the  military  training  should  all  be  acquired  at  the  same  institu- 


84        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

tion.    Consequently,  a  student  may  be  entitled  to  advanced  standing 
in  military  science  where  he  has  received  military  instruction  sub- 
stantially equivalent  to  that  prescribed  by  the  above-mentioned  sec- 
tions of  the  national  defense  act. 
Ops.  J.  A.  G.  354.17,  Nov.  24,  1917. 

MILITIA:   Draft  of  National  Guard  officers. 

An  officer  in  the  National  Guard  of  Wisconsin  called  into  the  Fed- 
eral service  July  15,  1917,  was  ordered  to  report  for  duty  and  await 
orders,  and  did  report  for  duty  on  July  21,  1917.  By  error  of  the 
military  authorities  he  was  not  mustered  into  the  service  or  assigned 
to  the  performance  of  any  duties.  Tleld^  that  he  should  be  considered 
to  have  been  accepted  into  the  service  of  the  United  States  as  a  mem- 
ber of  the  Organized  Militia  on  July  21,  1917,  and  to  have  been 
drafted  into  the  service  of  the  United  States  on  August  5.  1917. 

Ops.  J.  A.  G.  241.1,  Nov.  24,  1917. 

NATIONAL  ANTHEM :   Misuse  of. 

There  is  no  Federal  legislation  regulating  the  playing  of  the  na- 
tional anthem,  but  some  States  have  statutes  forbidding  playing  it  as 
part  of  a  medley. 

Ops.  J.  A.  G.  007.11,  Nov.  12,  1917. 

OPFICE  IV,  A  2 :   Acceptance  of  other  office. 

There  is  no  Federal  statute  forbidding  an  officer  in  the  National 
Army  from  holding  civil  office.  The  prohibition  of  section  1222,  Ke- 
vised  Statutes,  applies  only  to  officers  of  the  Eegular  Army  on  the 
active  list.  As  to  others  than  officers  of  the  Regular  Army,  the  mat- 
ter is  one  for  State  regulation.  ' 

Ops.  J.  A.  G.  324.24,  Nov.  21,  1917. 

OFFICE  III,  A:   De  facto  officer — Rights  of. 

The  commission  of  a  first  lieutenant,  Medical  Reserve  Corps,  ex- 
pired June  3,  1917,  but  the  officer  continued  in  service  without  a  new 
commission  and  received  pay  and  mileage  as  an  officer  until  August 
31,  1917.  On  September  9  he  accepted  a  commission  as  captain, 
Medical  Officers'  Reserve  Corps.  Held^  that  from  June  3  to  Sep- 
tember 9  he  was  a  de  facto  officer  and  was  entitled  to  keep  the  pay 
already  received,  but  was  entitled  to  receive  no  more  pay  except  for 
the  period  beginning  September  9,  when  he  became  a  de  jure  officer. 

Ops.  J.  A.  G.  324.23,  Nov.  14,  1917. 

OFFICE  IV,  E  2 :   Dismissal  of  temporary  and  provisional  officers. 

The  President  has  complete  power  to  discharge  any  temporary 
officer  of  the  Regular  Army  holding  appointment  under  section  1 
of  the  act  of  May  18,  1917.  Commanding  generals  may  appoint 
military  boards  to  pass  upon  the  capacity  and  fitness  of  such  officer, 
whose  findings  may  be  laid  before  the  President  for  siich  action  as 
he  sees  fit.  (Sees.  1  and  9  of  act  of  May  18,  1917;  subpar.  2  of  par. 
7,  G.  O.  76,  C.  S.)  But  the  President  may  discharge  provisional 
officers  appointed  under  section  23  of  the  national  defense  act  of 
June  3,  1916,  only  after  due  investigation,  such  as  is  provided  for  in 
paragraph  7,  G.  O.  76,  C.  S. 

Ops.  J.  A.  G.  324.4,  Nov.  17, 1917. 


DIGEST  OP  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ABMY.        85 

OFFICE  I,  III  A,  8a (4)  :   Persons  required  to  take  oath  of  oflOlce. 

Where  positions  are  specifically  provided  for  and  specifically  ap- 
propriated for  by  act  of  Congress,  the  holders  of  such  position  must 
take  the  oath  of  office  prescribed  by  section  1757,  Revised  Statutes. 
No  modified  oath  can  be  substituted  therefor.  But  where  positions 
are  not  so  provided  for,  and  the  holders  thereof  are  merely  desig- 
nated or  appointed  by  the  head  of  a  department  to  perform  the 
services  and  are  paid  out  of  a  general  appropriation  for  the  expenses 
of  such  department,  the  taking  of  such  oath  can  not  be  required. 

Ops.  J.  A.  G.  230.211,  Nov.  19,  1917. 

OFFICE  III,  B:   Promotions  in  Medical  Corps. 

Section  10  of  the  national-defense  act  provides  that  persons  here- 
after commissioned  in  the  Medical  Corps  shall  be  promoted  to  the 
grade  of  captain  after  five  years'  service  in  the  Medical  Corps  and 
upon  passing  the  examinations  prescribed  by  the  President  for  pro- 
motion. Public  86,  Sixty-fifth  Congress,  provides  that  during  the 
present  emergency  first  lieutenants  in  the  Medical  Corps  of  the 
Regular  Army  and  of  the  National  Guard  shall  be  eligible  to  pro- 
motion as  captain  upon  such  examination  as  may  be  prescribed  by 
the  Secretary  of  War.  Construing  these  provisions  together  with 
section  114  of  national  defense  act,  it  is  held  that  all  vacancies  in  the 
Medical  Corps  must  be  filled  by  permanent  or  temporary  promotions, 
according  to  the  character  of  the  vacancy,  of  officers  in  the  Medical 
Corps  below  the  grade  in  which  the  vacancy  exists,  in  order  of  senior- 
ity, subject  to  the  required  examinations.  Temporary  appointments 
can  be  resorted  to  only  when  possibilities  of  promotions  by  seniority 
have  been  exhausted. 

Ops.  J.  A.  G.  210.2,  Nov.  16,  1917. 

OFFICE  III :   Right  of  commanding  officer — Effect  of  detail. 

Assignments  to  commands  and  to  statutory  offices  are  governed 
strictly  by  law  and  regulations,  but  officers  assigned  to  a  command 
are  subject  to  the  will  of  the  commanding  officer  and  may  properly 
be  required  to  perform  any  duties  he  may  direct  them  to  perform 
(A.  E.  746).  And  a  division  commander  may  detail  one  staff  officer 
to  perform  the  duties  of  another.  Accordingly  he  may  detail  the 
inspector  general  of  the  division  to  duty  as  Acting  Chief  of  Staff 
and  detail  a  field  officer,  on  duty  with  a  regiment  of  the  division,  as 
acting  inspector  of  the  division.  Such  field  officer  is  not  thereby 
made  an  officer  of  the  Inspector  General's  Department  and  can  not 
perform  any  duties  which  are  specifically  required  by  statute  to  be 
performed  by  an  officer  of  the  Inspector  General's  Department. 

Ops.  J.  A.  G.  322.081,  Nov.  8,  1917. 

OFFICERS'  RESERVE  CORPS:   Eligibility  of  members  for  boards  of  ex- 
amination for  rating  of  aviator. 

Members  of  the  Signal  Officers'  Reserve  Corps  promoted,  ap- 
pointed, detailed,  or  attached  to  the  Aviation  Section  of  the  Signal 
Corps  are,  if  they  have  the  required  experience,  "officers  of  expe- 
rience of  the  Aviation  Section  of  the  Signal  Corps  "  qualified  to  be 
members  of  boards  authorized  to  examine  and  certify  to  the  qualifi- 
cations of  persons  seeking  the  rating  of  aviators  under  section  6  of 
the  act  of  June  24,  1917. 

Ops.  J.  A.  G.  334.1,  Nov.  21,  1917. 


86        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

PAY  AND  ALLOWANCES  I,  C  8;  III,  B  4:  Allotments  and  satisfaction  of 
private  claims  against  enlisted  men. 

A  soldier  can  not  legally  be  deprived  of  any  part  of  his  pay  for 
the  satisfaction  of  a  private  claim,  even  for  the  support  of  his  de- 
pendent parents.  But  he  can  make  a  voluntary  allotment  for  such 
purpose.  If  he  allots  a  portion  of  his  pay  for  the  support  of  his 
dependent  parents,  the  Government  will,  under  certain  circumstances, 
make  an  additional  allowance  to  the  parents  pursuant  to  the  war  risk 
insurance  act  of  October  6,  1917. 

Ops.  J.  A.  G.  243,  Nov.  3,  1917. 

PAY  AND  ALLOWANCES  II,  A  la:  Commutation  for  heat  and  light. 

An  officer  on  duty  in  the  field  with  his  regiment  is  not  entitled  to 
have  heat  and  light  furnished  for  public  quarters  occupied  elsewhere 
by  his  family. 
■  Ops.  J.  A.  G.  245.2,  Nov.  8,  1917. 

PAY  AND  ALLOWANCES  I,  A:  De  facto  officers. 

An  officer  of  the  Medical  Reserve  Corps  who  refused  to  accept  a 
commission  in  the  Medical  Officers'  Reserve  Corps  is  not  entitled  to 
receive  any  pay  for  services  as  an  officer  after  June  3,  1917,  for  since 
that  date  such  officer  has  been  at  best  but  a  de  facto  officer.  Pay  which 
a  de  facto  officer  has  received  he  may  keep,  but  he  has  no  legal  claim 
for  any  pay  not  yet  received. 

Ops.  J.  A.  G.  324.23,  Nov.  15,  1917. 

PAY  AND  ALLOWANCES  I,  C :   Gunner's  pay. 

Under  section  1343,  Army  Regulations,  1917,  a  Coast  Artillery 
man  rated  as  a  gunner  and  entitled  to  pay  as  such  loses  such  rating 
and  right  to  such  pay  on  being  transferred  to  the  Field  Artillery. 

Ops.  J.  A.  G.  242.142,  Nov.  21,  1917. 

PAY  AND  ALLOWANCES  I,  B  6 :   Longevity  pay. 

The  act  of  June  18,  1878  (20  Stat.  150),  providing  for  credit  of 
full  time  of  service  for  longevity  pay  has  reference  to  service  as  an 
officer  or  enlisted  man  in  the  full  military  sense.  Service  in  a  training 
camp  under  an  enlistment  having  for  its  sole  purpose  training  for 
entrance  into  the  Army  of  the  United  States  as  an  officer  and  not 
binding  the  enlisted  man  to  any  service  unless  accepted  as  an  officer 
can  not  be  counted  thereunder. 

Ops.  J.  A.  G.  241.12,  Nov.  12,  1917. 

PAY  AND  ALLOWANCES  I,  C :  Marksman's  pay,  machine-gun  battalion. 

Under  Army  Regulation  1345  and  paragraph  89,  Small  Arms  Fir- 
ing Manual  as  amended,  an  enlisted  man,  qualified  as  a  marksman  in 
the  machine-gun  company  of  an  Infantry  regiment,  who  has  been 
transferred  to  a  company  in  a  machine-gun  battalion,  is  entitled  to 
the  pay  of  a  marksman,  for  he  is  still  a  member  of  an  organization 
armed  with  the  rifle. 

Ops.  J.  A.  G.  242.142,  Nov.  2,  1917. 

PAY  AND  ALLOWANCES  I,  C  5 :  Retirement  II,  A — Enlistment  I,  D. 

The  Army  appropriation  act  of  May  12,  1917  (Bulletin  30,  p.  45, 
Pub.  No.  11>  65th  Cons:,  p.  39),  provides  for  the  restoration  of  status 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.         87 

in  the  Regular  Army  of  an  enlisted  man  who  shall  be  discharged  to 
accept  a  commission  in  the  Officers'  Reserve  Corps,  in  the  National 
Guard,  or  militia  organization,  or  in  any  volunteer  force,  and  who 
shall  enlist  within  three  months  after  the  termination  of  his  connec- 
tion as  an  officer  with  that  corps,  etc.  lleld^  that  an  enlisted  man  who 
is  discharged  from  the  Regular  Army  to  accept  a  temporary  com- 
mission in  the  Regular  Army  would  not  be  entitled  upon  reenlistment 
to  occupy  his  previous  status  in  the  Regular  Army. 
Ops.  J.  A.  G.  342.06,  Nov.  17,  1917. 

PAY  AND  ALLOWANCES  I,  C:  Sharpshooter's  pay— Aero  squadron. 

The  Tables  of  Organization  for  1917  show  an  aero  squadron  to  be 
an  organization  armed  with  a  rifle,  but  these  tables  have  no  retro- 
active effect.  A  qualification  as  a  sharpshooter  continues  for  one  year 
if  no  opportunity  for  requalification  is  presented  within  that  year 
(A.  R.  1345).  Therefore  an  infantryman  who  qualified  as  a  sharp- 
shooter on  July  13,  1915,  and  was  on  March  1,  1916,  transferred  to 
an  aerial  squadron,  was  not  after  March  1,  1916,  entitled  to  pay  as  a 
sharpshooter,  for  from  March  1, 1916,  to  July  13, 1916,  an  aero  squad- 
ron was  not  an  organization  armed  with  a  rifle. 

Ops.  J.  A.  G.  242.142,  Nov.  15,  1917. 

PAY  AND  ALLOWANCES  II,  A  2a :   Transportation  of  oflcer's  horse. 

Private  mounts  of  an  officer  may,  upon  change  of  station,  be  trans- 
ported at  public  expense  only  when  they  are  to  be  used  by  him  at 
his  new  station  in  the  public  service. 

Ops.  J.  A.  G.  9^011,  Oct.  31,  1917. 

PAY  AND  ALLOWANCES  II,  A  3 :   Travel  allowance  to  drafted  men. 

A  drafted  man  discharged  by  competent  authority  is  entitled  to 
travel  allowance  to  the  place  of  acceptance  for  service.  But  men 
sent  to  camps  under  the  draft  act  are  not  entitled  to  travel  allow- 
ance to  the  place  of  reporting  to  the  local  board  for  military  service. 

Ops.  J.  A.  G.  513.3,  Nov.  22, 1917. 

PAY  AND  ALLOWANCES  II,  A  2 :   Travel  pay  of  reserve  officers. 

A  reserve  officer  making  an  inspection  of  the  records  and  accounts 
of  the  National  Guard  is  entitled  to  mileage,  but  is  not  entitled  to  be 
reimbursed  for  actual  expenses.  Section  67  of  the  national  defense 
act  appropriates  funds  for  the  actual  and  necessary  expenses  incurred 
by  officers  and  enlisted  men  of  the  Eegular  Army  when  traveling  on 
duty  in  connection  with  the  National  Guard,  but  such  funds  are  not 
available  to  pay  expenses  of  reserve  officers. 

Ops.  J.  A.  G.  245.6,  Nov.  10,  1917. 

BANK  II,  III :  Lineal  rank,  how  determined. 

On  May  15,  1917,  several  majors  in  different  departments  in  the 
Quartermaster's  Corps  were  promoted  to  be  lieutenant  colonels.  The 
promotions  were  made  according  to  seniority  in  the  several  depart- 
ments to  which  the  officers,  respectively,  belonged  before  the  con- 
solidation under  the  act  of  August  24,  1912  (37  Stat.  591),  as  re- 
quired by  section  3  of  said  act.  The  vacancies  to  which  they  were 
promoted  were  original  vacancies.  Held^  that  their  lineal  rank  is 
not  determined  by  section  1219,  Revised  Statutes,  for  the  reason 


88        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENEBAL  OF  AKMY. 

that  their  advancement  was  by  promotion  and  not  by  appointment, 
and  that  section  applies  to  appointments  and  not  to  promotions. 
Ops.  J.  A.  G.  210.725-15,  Nov.  19,  1917. 

RANK  D:   Rank  of  noncommissioned  officers. 

A  noncommissioned  officer  of  the  Regular  Army  is  senior  to  a 
noncommissioned  officer  of  the  same  grade  in  other  forces  irrespective 
of  date  of  warrant  The  reason  is  that  members  of  the  permanent 
Military  Establishment  are  assumed  to  be  more  experienced  than 
those  in  the  other  forces  which  are  more  or  less  temporary. 

Ops.  J.  A.  G.  220.721,  Nov.  20,  1917. 

RETIREMENT  II,  A  4 :   Computing  war  service  for. 

The  act  of  March  2, 1907,  provides  that  in  computing  the  30  years* 
service  for  retirement  of  enlisted  men,  all  service  in  the  Army,  Navy, 
and  Marine  Corps  shall  be  credited.  The  act  of  March  3,  1899,  gov- 
erning service  for  retirement  in  the  Navy,  provides  that  active  war 
service  during  the  Civil  or  Spanish-American  War  shall  be  counted 
as  double  time.  Ileld^  that  in  computing  the  30  years'  service  for 
retirement  of  an  enlisted  man  in  the  Army,  time  actually  served  by 
him  in  the  Navy  should  be  computed  by  Navy  standards  and  war 
service  therein  should  be  counted  as  double  time. 

Ops.  J.  A.  G.  220.85,  Nov.  5,  1917. 

SELECTIVE-DRAFT  ACT :   Organization  of  regiments. 

Under  the  third  paragraph  of  section  1  of  the  selective-draft  act, 
the  President  has  authority  to  provide  that  Cavalry  regiments  or- 
ganized •  provisionally  as  Field  Artillery  may  retain  their  existing 
noncommissioned  personnel  until  absorbed,  but  no  special  authority 
can  be  given  to  a  single  organization  to  do  so. 

Ops.  J.  A.  G.  322.05,  Nov.  17,  1917. 

WAR:   Censorship  of  mail  in  Canal  Zone. 

Under  section  13  of  the  act  of  August  24,  1912,  to  provide  for  the 
government  of  the  Canal  Zone  (37  Stat.  560,  569)  the  Governor  of 
the  Panama  Canal  in  time  of  war  has  power,  under  authority  given 
by  the  President,  to  censor  all  mail.  The  espionage  act  of  June  15, 
1917,  did  not  repeal  said  section  13  of  said  chapter  390. 

Ops.  J.  A.  G.  000.73,  Nov.  5,  1917. 

OFFICERS:  Promotions  to  fill  temporary  vacancies  in  the  Regular  Army. 

[  First  indorsemen  t.  ] 

82-121. 

War  Department,  J.  A.  G.  O.,  September  4,  1917.— To  The  Ad- 
jutant General. 

1.  By  informal  indorsement  you  have  referred  to  this  office  a 
request  for  an  opinion  as  to  the  proper  construction  to  be  given  that 
part  of  section  8  of  the  act  of  May  18, 1917,  considered  in  connection 
with  section  114  of  the  national  defense  act,  governing  the  subject  of 
promotions  to  fill  temporary  vacancies  in  the  Regular  Army  which 
occur  by  reason  of  the  appointment  of  regular  officers  to  higher 
grades  in  the  National  Army.  Section  8  of  the  act  of  May  18,  1917, 
reads  in  part  as  follows: 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENEBAL  OF  AKMY.        89 

"  Vacancies  in  all  grades  in  the  Regular  Army  resulting  from  the 
appointment  of  officers  thereof  to  higher  grades  in  the  forces  other 
than  the  Regular  Army  herein  provided  for  shall  be  filled  by  tem- 

Eorary  promotions  and  appointments  in  the  manner  prescribed  for 
lling  temporary  vacancies  by  section  one  hundred  and  fourteen  of 
the  national  defense  act  approved  June  third,  nineteen  hundred  and 
sixteen;  and  officers  appointed  under  the  provisions  of  this  act  to 
higher  grades  in  the  forces  other  than  the  Regular  Army  herein 
provided  for  shall  not  vacate  their  permanent  commission  nor  be 
prejudiced  in  their  relative  or  lineal  standing  in  the  Regular  Army." 
Section  114  of  the  national  defense  act  provides  as  follows: 
"  In  time  of  war  the  temporary  vacancies  created  in  any  grade  not 
above  that  of  colonel  among  the  commissioned  personnel  of  any  arm, 
staff  corps,  or  department  of  the  Regular  Army,  through  appoint- 
ments of  officers  thereof  to  higher  rank  in  organizations  composed 
of  members  taken  from  the  National  Guard,  shall  be  filled  by  tem- 
porary promotions  according  to  seniority  in  rank  from  officers  hold- 
ing commissions  in  the  next  lower  grade  in  said  arm,  staff  corps,  or 
department,  and  all  vacancies  created  in  any  grade  by  such  tem- 
porary promotions  shall  be  in  like  manner  filled  from,  and  thus 
create  temporary  vacancies  in,  the  next  lower  grade,  and  the  vacan- 
cies that  shall  remain  thereafter  in  said  arm,  staff  corps,  or  depart- 
ment and  that  can  not  be  filled  by  temporary  promotions,  as  pre- 
scribed in  this  section,  may  be  filled  by  the  temporary  appointment 
of  officers  of  such  number  and  grade  or  grades  as  shall  maintain  said 
arm,  corps,  or  department  at  the  full  commissioned  strength  author- 
ized bv  law." 

2.  In  construing  the  foregoing  provisions  of  the  statute  it  is 
necessary  to  determine  the  force  and  effect  to  be  given  to  that  clause 
wherein  it  is  stated  that  officers  of  the  Regular  Army,  appointed  to 
higher  grades  in  forces  other  than  the  Regular  Army,  "shall  not 
vacate  their  permanent  commissions  or  be  prejudiced  in  their  rela- 
tive or  lineal  standing  in  the  Regular  Army " ;  and  also  to  that 
clause  wherein  it  is  stated  that  temporary  vacancies  created  in  any 
grade  not  above  that  of  colonel  among  the  commissioned  personnel 
of  any  arm,  staff  corps,  or  department  of  the  Regular  Army  through 
appointment  of  officers  thereof  to  higher  rank  in  forces  other  than 
the  Regular  Army—"  shall  be  filled  by  temporary  promotions  ac- 
cording to  seniority  in  ranh  from  officers  holding  commissions  in  the 
next  lower  grade  in  said  arm,  staff  corps,  or  department." 

3.  It  is  impossible  to  read  this  statute  without  grasping  as  its  true 
significance  the  fact  that  it  was  intended  to  enable  the  War  Depart- 
ment to  raise  and  properly  officer  large  armies  such  as  those  in  process 
of  formation  at  the  present  time.  To  accomplish  this  purpose  au- 
thority is  extended  to  commission  officers  of  the  Regular  Army  tem- 
porarily in  such  other  forces  as  may  be  raised,  and  its  purpose  to 
protect  officers  so  commissioned  in  their  permanent  commissions  and 
to  prevent  them  from  being  prejudiced  in  their  relative  or  lineal 
standing  in  the  Regular  Army  is  unmistakable.  Beyond  this  it  was 
not  required,  however,  that  the  department  waste  its  time  and  effort 
in  dealing  with  questions  of  rank  and  precedence  such  as  would  be 
involved  if  an  effort  were  made  to  prevent  minor  variations  in  rela- 
tive or  lineal  standing  as  between  officers  who  choose  to  remain  in  the 


90        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

Regular  Army  and  to  serve  under  their  commissions  therein,  and 
those  who  choose  to  accept  higher  commissions  in  forces  other  than 
the  Regular  Army.  If  such  a  course  of  procedure  were  to  be  adopted 
by  the  War  Department,  it  is  perfectly  evident  that  so  many  changes 
and  disturbances  among  the  commissioned  personnel  of  the  several 
forces  would  be  required  to  preserve  the  relative  and  lineal  standing 
of  officers  of  the  Regular  Army  that  confusion  would  inevitably  fol- 
low, efficiency  would  be  impaired,  and  the  usefulness  of  armies  subor- 
dinated to  the  adjustment  of  rank  and  precedence. 

4.  From  what  has  just  been  stated  it  appears  to  be  desirable  to 
adopt  a  construction,  if  such  can  be  consistently  done  within  the  fair 
meaning  and  intendment  of  the  statute,  which  will  promote  the  high- 
est efficiency  of  the  service.  Assuming,  as  we  must,  that  this  was  the 
purpose  of  the  act,  it  is  difficult  to  believe  that  Congress  could  have 
intended,  by  the  language  used,  not  only  to  protect  regular  officers  in 
their  permanent  commissions  but  to  protect  them  as  well  from  being 
prejudiced,  even  temporarily,  in  their  relative  or  lineal  standing  by 
preventing  such  of  them  as  accept  commissions  in  forces  other  than 
the  Regular  Army  from  being  temporarily  ranked  by  officers  of  lower 
permanent  rank  in  the  Regular  Army,  but  who  are  advanced  therein 
by  temporary  promotions.  On  the  other  hand,  it  accords  with  this 
assumed  purpose  of  the  law  to  hold  that  Congress  intended  merely 
to  protect  officers  of  the  Regular  Army  in  their  permanent  commis- 
sions therein  and,  as  an  incident  of  such  protection,  to  prevent  them 
from  being  prejudiced  in  their  relative  or  lineal  standing  as  mem- 
bers of  the  permanent  establishment  only.  If  it  be  contended  that 
this  view  might  result  in  temporarily  giving  a  junior  who  had  been 
advanced  by  temporary  promotion  in  the  Regular  Army  higher  rank 
than  his  senior  who  has  accepted  a  commission  in  forces  other  than 
the  Regular  Army,  the  answer  is  that  this  is  a  risk  the  senior  assumed 
when  he  accepted  a  higher  commission  in  such  other  forces,  a  risk 
which  the  statute  did  not  protect  against  and  which  the  War  Depart- 
ment, as  pointed  out  above,  could  not  well  assume  to  avoid  without 
endangering  the  ultimate  success  of  the  great  effort  upon  which  it  is 
now  embarked. 

5.  When  an  officer  of  the  Regular  Army  leaves  his  place  in  the 
permanent  establishment  to  accept  temporarily  a  higher  rank  in 
another  army,  it  must,  I  think,  be  assumed  that  his  commission  in 
the  Regular  Army  is  temporarily  in  abeyance.  While  serving  under 
a  different  commission  in  some  other  army,  he  does  not  and  can  not 
function  under  his  commission  in  the  Regular  Army.  He  is  not, 
therefore,  within  the  meaning  of  the  statute,  an  officer  "  holding  a 
commission  in  the  next  lower  grade  "  of  his  arm,  staff  corps,  or  de- 
partment, for,  as  just  shown,  he  has  ceased  to  function  therein  and  is 
temporarily  as  much  absent  therefrom  as  though  he  really  formed 
no  part  of  such  arm,  staff  corps,  or  department.  The  statute  can 
properly  be  given  full  force  and  effect  by  construing  the  language 
just  quoted  to  mean  that  promotions  to  temporary  vacancies  caused 
through  the  appointment  of  officers  of  the  Regular  Army  to  higher 
rank  in  forces  other  than  the  Regular  Army  shall  be  filled  by  tempo- 
rary promotions  according  to  seniority  of  the  officers  who  remain 
in  the  Regular  Army  and  are,  at  the  time  of  such  vacancies,  serving 
under  their  commission  therein.  Officers  not  serving  under  their 
commissions  in  the  Regular  Army  would  thus  be  temporarily  passed 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENEBAL  OF  AKMY.         91 

over  and,  instead  of  being  promoted  temporarily  to  higher  vacancies 
in  their  own  arm,  staff  coi^s,  or  department,  they  would  be  left  to 
serve  under  the  higher  commissions  which  they  are  temporarily  hold- 
ing in  some  other  army.  Such  is  the  clear  intendment  of  the  statute 
and  such,  I  think,  must  have  been  the  purpose  of  Congress  in  enact- 
ing it. 

6.  It  is  impossible  to  foresee  and  discuss  every  contingency  that 
may  arise  in  the  administration  of  this  law  under  the  construction 
which  I  have  just  indicated  will  be  the  proper  one  to  adopt;  but  it 
is  believed  that  the  difficulties  under  this  plan  will  be  few  in  com- 
parison with  those  that  would  inevitably  arise  under  the  alternative 
construction  suggested  and  that  none  of  those  that  do  arise  will 
prove  to  be  insuperable.  It  may  be  proper,  however,  in  addition  to 
what  has  been  stated,  to  refer  to  the  matter  of  permanent  promotions 
in  the  Regular  Army.  When  an  officer  becomes  entitled  to  a  perma- 
nent promotion  in  the  Regular  Army  he  must,  of  course,  accept  the 
same.  If  he  is  serving  as  a  colonel,  let  us  say,  in  the  National  Army 
and  becomes  a  permanent  colonel  in  the  Regular  Army,  he  should 
ordinarily  be  continued  in  service  in  the  National  Army.  This  could 
involve  no  impairment  of  his  rank,  since  his  commission  as  a  colonel 
in  the  National  Army  would  antedate  his  commission  as  a  permanent 
colonel  in  the  Regular  Army.  If,  however,  an  officer  is  serving  as  a 
temporary  colonel  in  the  Regular  Army  and  is  promoted  to  be  a 
permanent  colonel  therein,  it  may  well  be  that  his  commission  as  a 
permanent  colonel  will  be  subsequent  to  that  held  by  other  tempo- 
rary colonels  who  are  his  juniors  in  his  arm,  staff  corps,  or  depart- 
ment. It  is  my  view  that  the  statute  intended  to  protect  officers  of 
the  Regular  Army  against  a  contingency  of  this  kind  when  it  pro- 
vided that  they  should  not  be  "  prejudiced  in  their  relative  or  lineal 
standing  in  the  Regular  Army."  I  think  it  would  be  a  fair  construc- 
tion of  this  language  to  hold  that  Congress  intended  that  no  officer 
of  the  Regular  Army,  serving  under  a  commission  therein,  shall  be 
required  to  serve  with  lower  rank  than  that  held  by  a  junior  in  his 
arm,  staff  corps,  or  department  and  who  is  also  serving  under  a  com- 
mission therein.  This  situation  can  be  obviated  by  giving  the  officer 
who  receives  the  permanent  promotion  a  constructive  date  of  rank 
as  of  the  date  of  the  temporary  commission  which  he  vacates  to 
accept  his  permanent  commission.  This  may  be  found  necessary  to 
maintain  him  in  his  proper  relative  or  lineal  standing  in  the  Regular 
Army.  Cases  of  this  kind  will,  it  is  believed,  be  few  in  number  and 
can  be  taken  care  of  by  administrative  action  without  difficulty. 
This  construction  of  the  statute  and  the  suggested  administrative 
action  thereunder  would  amply  protect  officers  of  the  Regular  Army 
in  so  far  as  Congress  intended  to  expend  protection,  and  would  leave 
the  question  of  relative  rank  as  between  officers  serving  under  com- 
missions in  some  other  army,  where  Congress,  I  think,  int^ended  to 
leave  it  to  the  fortunes  of  war  and  the  incidents  of  service. 

7.  It  is,  therefore,  the  opinion  of  this  office  that  promotions  to 
vacancies  in  the  Regular  Army  caused  by  the  appointment  of  officers 
thereof  to  higher  grades  in  forces  other  than  the  Regular  Army 
should  be  filled  by  promotion,  according  to  seniority,  of  officers  who, 
at  the  date  of  such  vacancies  are  serving  under  commissions  in  the 
next  lower  grade  of  the  arm,  staff  corps,  or  department  in  which  the 
vacancies  occur. 


92        DIGEST  OP  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

OFriCERS:  Effect  of  acceptance  of  commissions  in  one  of  the  component 
forces  of  the  Army  of  the  United  States  upon  a  commission  held  in  an- 
other force  of  said  Army. 

V  [Memorandum  for  The  Adjiitant  General.] 

August  30,  1917. 
64-311. 

Subject:  Effect  of  acceptance  of  commissions  in  one  of  the  component 
forces  of  the  Army  of  the  United  States  upon  a  commission  held  in 
another  force  of  said  Army. 

1.  In  your  letter  of  August  22,  1917,  you  ask  my  opinion — 

"  as  to  whether  or  not  the  acceptance  of  a  commission  in  one  of  the 
armies  of  the  United  States  operates  to  vacate  a  commission  held  in 
one  of  the  other  armies  where  such  commission  is  not  protected  by 
statute,  such  as  one  held  in  the  Regular  Army." 

In  the  first  place,  it  is  pertinent  to  invite  your  attention  to  the  fact 
that  there  is  but  one  Army  of  the  United  States  in  the  general  sense — 
"  the  Army  of  the  United  States,"  which  consists  of  the  Regular  Army,, 
the  Volunteer  Army,  the  Officers'  Reserve,  Corps,  the  Enlisted  Reserve 
Corps,  the  National  Guard  drafted  into  the  service  of  the  United 
States,  and  the  additional  forces  provided  for  in  the  National  Army 
act  (the  National  Army  act  of  May  18,  1917,  and  sec.  1,  national 
defense  act) .  Whoever  holds  a  commission  in  any  of  these  component 
forces  is  an  officer  in  the  Army  of  the  United  States. 

2.  The  statutes  expressly  provide  that  officers  of  the  Regular  Army 
(which  includes  both  active  and  retired  officers)  may  accept  commis- 
sions in  the  National  Guard  Avithout  vacating  their  commissions  in 
the  Regular  Army  (sec.  100,  national  defense  act),  and  all  the  volun- 
teer acts  have  carried,  and  do  still  carry,  the  same  provision.  See  the 
volunteer  act  of  1898  (30  Stat.  360,  363) ;  the  volunteer  act  of  March 
2,  1899  (30  Stat.  977,  980) ;  section  1,  act  of  May  28,  1898  (30  Stat. 
421) ;  and  the  existing  volunteer  act  of  April  25,  1914  (38  Stat.  346, 
350).  The  present  National  Army  act,  which  provides  an  additional 
force — the  so-called  National  Army — supplanting  the  time-honored 
Volunteer  Army,  also  provides  that — 

"  Officers  appointed  under  the  provisions  of  this  act  to  higher  grades 
in  the  forces,  other  than  the  Regular  Army,  herein  provided  for  shall 
not  vacate  their  permanent  commission  nor  be  prejudiced  in  their  rela- 
tive or  lineal  standing  in  the  Regular  Army." 

Thus  it  is  that  Congress  has  gone  to  great  pains  to  authorize  the  ap- 
pointment of  Regular  officers  to  the  National  Guard  drafted  into  the 
Army  of  the  United  States,  to  the  National  Army,  and  to  the  Volun- 
teer Army  whenever  such  there  shall  be,  and  to  protect  under  such 
circumstances  their  Regular  commissions.  In  my  opinion,  the  protec- 
tion furnished  ends  with  the  statute ;  and  if  an  officer  of  the  National 
Guard  component,  or  the  National  Army,  or  of  the  Reserve  Corps,  ac- 
cepts a  commission  in  any  other  component  force,  he  thereby  vacates 
his  former  commission. 

3.  In  my  judgment,  one  may  not  hold  two  offices  in  the  same 
military  establishment  without  specific  legislative  authority  there- 
for. This  may  be  regarded  as  inferentially  established  by  the  fact 
that  Congress  has  deemed  it  necessar}^  to  protect  the  commission  of 
an  officer  in  the  regular  service  when  appointed  to  any  other  force 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.        93 

in  the  Army  of  tlie  United  States.  The  incompatibility  existing  be- 
tween two  offices  in  the  same  military  establishment  is  obvious.  It 
is  settled  that  two  offices  are  incompatible  when  a  performance  of  the 
■duties  of  the  other  or  when  the  holding  of  two  is  contrary  ix>  the 
policy  of  the  law.  Crosthwaite  v.  U.  S.  (30  Ct.  Cls.  300;  22  Ops. 
Atty.*^  Gen.  237;  20  Ops.  Atty.  Gen.  427) ;  Wehster  v.  U.  S.  (S8  Ct. 
€ls.  25) ;  Graham  v.  U.  >S.  (29  Ct.  Cls.  404).  Obviously,  an  officer 
of  the  National  Army,  for  instance,  may  not  perform  the  duties  of 
an  officer  of  the  National  Guard,  or  of  a  reserve  officer,  and  his 
own  as  well ;  and  the  same  is  true  of  the  officers  of  the  several  forces. 
For  example,  a  reserve  officer  has  his  functions  established  by  law. 
As  such  he  may  be  used  for  certain  specified  purposes.  Obviously, 
he  can  not  perform  the  functions  which  inhere  in  his  office  as  a  re- 
serve officer  and  at  the  same  time  those  which  inhere  in  office  in  any 
of  the  other  forces.  Nor,  with  regard  to  his  inactive  status,  can  it 
be  said  that  he  stands  available  so  to  be  used  in  both  capacities.  Anv 
other  view  would  result  not  only  in  grave  inconsistencies,  but  posi- 
tive injury  to  the  military  service.  Holding  dual  or  multiple  com- 
missions in  the  same  establishment  can  but  frustrate  the  patent  policy 
of  the  law. 

4.  General  principles  point  the  way  to  this  conclusion,  and  while 
the  precedents  are  few  they  lead  in  the  same  direction.  It  has  been 
held  by  the  Attorney  General  that  the  office  of  colonel  is  inconsistent 
with  that  of  major  in  the  Army  (20  Ops.  428).  And  so  it  has  been 
held  of  an  engineer  and  a  paymaster  in  the  Navy  (Wehster  v.  U.  S.^ 
supra)  and  of  an  assistant  medical  referee  in  the  Pension  Bureau  and 
an  examining  surgeon  {Graham  v.  U.  S.,  supra).  In  Webster  v. 
U.  JS.^  supra,  the  court  seemed  to  rest  its  reason  for  its  holding  of 
incompatibility  upon  the  statement  that  they  were  "  two  offices  in 
the  same  service." 

It  is  certain  also  that  one  holding  both  commissions  would  not  re- 
ceive the  pay  of  both  offices,  and  this  in  itself  is  an  evidence  of 
incompatibility  (20  Ops.  Atty.  Gen.  428). 

5.  It  is  my  opinion,  therefore,  except  in  so  far  as  the  statute  gives 
express  protection,  an  officer  in  one  of  the  component  forces  of  the 
Army  of  the  United  States  may  not  hold  a  commission  in  another 
such  component,  and  that  if  he  be  appointed  to  any  such  second  office 
he  thereby  vacates  his  former  commission. 


DECISIONS  OF  COMPTROLLER. 

PAY  AND  ALLOWANCES  I,  B  6 :   Computing  service  for  longevity  pay. 

Commissioned  officers  of  the  Kegular  Army  who  have  had  State 
(not  Federal)  service  in  the  militia  or  National  Guard  are  not  en- 
titled to  count  such  service  in  the  computation  of  their  longevity 
pay.  Officers  of  the  National  Guard  drafted  into  the  military  service 
of  the  United  States  under  sectjon  111  of  the  national  defense  act  of 
June  3,  1916,  are  entitled  to  have  counted  all  legal  service  which 
they  have  had  in  the  Organized  Militia  or  National  Guard  and  in 
the  Army  and  Navv,  if  anv,  in  computing  their  longevity  pay. 

Opinion  of  Nov.  "^19,  1917. 


94        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

PAY  AND  ALLOWANCES  II,  A  3:   Travel  allowance  of  Regular  Army 
reservist  on  discharge. 

Upon  the  discharge  of  an  enlisted  man  of  the  Eegular  Army 
Keserve,  recalled  to  active  service,  he  is  entitled  to  travel  allowance 
from  the  place  of  his  discharge  to  his  home ;  that  is,  to  the  place  from 
which  he  was  furnished  transportation  when  called  to  active  duty. 

Opinion  of  Nov.  16,  1917,  affirming  opinion  of  J.  A.  G. 


NOTES  ON  THE  ADMINISTRATION  OF  MILITAEY  JUSTICE. 

AMENDMENT  OF  RECOilD. 

The  reviewing  authority  in  a  recent  case  returned  for  correction 
attempted  to  amend  the  record  by  attaching  thereto  certificates  of 
the  president  of  the  court  and  the  trial  judge  advocate  to  the  effect 
that  the  members  of  the  court  and  the  judge  advocate  were  sworn. 

In  another  case,  returned  for  correction,  the  president  of  the  court 
interlined  and  initialed  a  statement  to  the  effect  that  the  accused  was 
asked  if  he  objected  to  any  other  member  of  the  court,  to  which  he 
replied  in  the  negative. 

Proper  correction  of  both  of  the  errors  referred  to  was  essen- 
tial to  the  validity  of  the  proceedings.  It  has  been  decided  in 
a  number  of  cases  that  amendments  "  can  only  be  made  by  the  court 
when  duly  reconvened  for  the  purpose,  and  when  made  must  be  the 
act  of  the  court  as  such."  (Dig.  Ops.  J.  A.  G.  1912,  523.)  Paragraph 
364  of  the  Manual  for  Courts-Martial,  1917,  plainly  describes  the 
method  of  correcting  clerical  and  other  errors  in  court-martial 
records,  and  failure  to  comply  therewith  unnecessarily  increases  the 
work  of  this  office  as  well  as  the  expense  of  administering  military 

COMMENT    UPON    EVIDENCE    IN    OPEN    COURT    BY    MEMBER    OF 
COURT. 

After  the  trial  judge  advocate  had  concluded  his  remarks  and  just 
before  the  court  was  closed  for  findings  in  the  trial  of  a  soldier 
charged  with  desertion  and  found  guilty  of  absence  Avithout  leave, 
the  president  of  the  court  made  the  following  statement : 

"  To  my  mind  it  is  an  aggravated  case  of  overindulgence  in  whisky 
in  a  young  man  whose  future,  I  fear,  is  very  black." 

This  irregularity  was  of  such  a  grave  nature  that  had  not  the  ac- 
cused freely  admitted  his  absence  without  leave  on  the  witness  stand 
the  finding  and  sentence  of  the  court  must  have  been  set  aside.  The 
president  of  the  court,  or  any  member  thereof,  has  no  right  to  com- 
ment in  open  court  upon  the  evidence  adduced  at  the  trial. 

PROCEEDINGS  IN  REVISION — CONSTITUTION  OF  COURT. 

In  a  recent  case  it  was  necessary  for  the  reviewing  authority  to  re- 
turn the  record  of  trial  of  a  soldier  convicted  of  larceny  to  the  court, 
with  directions  to  reconvene  and  correct  certain  errors  therein,  which 
was  done.  Upon  examination  of  the  record  in  the  office  of  the  Judge 
Advocate  General  it  was  found  that  the  proceedings  in  revision  were 
invalid,  for  the  reason  that  a  member  of  the  court  absent  at  the  trial 
participated  therein.  The  record  was  returned  to  the  reviewing  au- 
thority, who  then  issued  an  order  setting  the  sentence  aside  as  being 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENEBAL  OF  ABMY.         95 

invalid.  No  reason  is  apparent  for  not  again  reconvening  the  court 
in  order  that  it  might  correct  the  record  in  proper  proceedings  in  re- 
vision. By  this  action  of  the  reviewing  authority  the  trial  was  ren- 
dered ineffectual  and  a  soldier  convicted  of  a  crime  involving  moral 
turpitude  unnecessarily  escaped  merited  punishment. 

PUNISHMENT  FOR  VIOLATION  OF  LIQUOR  REGULATIONS. 

In  a  recent  case,  in  addition  to  being  convicted  of  deseition  in  time 
of  peace,  a  soldier  pleaded  guilty  to  selling  liquor  to  another  soldier 
in  uniform,  in  violation  of  section  12  of  the  act  of  May  18, 1917.  The 
court  imposed  a  sentence  of  dishonorable  discharge,  total  forfeitures, 
and  confinement  at  hard  labor  for  18  months,  which  was  approved  by 
the  reviewing  authority,  and  which  was  adequate  punishment  only 
for  the  crime  of  desertion.  The  court  apparently  ignored  the  gravity 
of  the  offense  of  selling  liquor  to  a  soldier  and  failed  to  punish  prop- 
erly a  self-confessed  bootlegger.  Any  person  who  now  furnishes 
liquor  to  a  soldier  impairs  the  military  forces  of  the  United  States 
at  a  time  of  national  emergency,  when  the  country  is  straining  e\ery 
nerve  to  build  up  and  increase  the  efficiency  of  its  Army.  Drastic 
punishment  should  be  meted  out  in  no  uncertain  manner  to  this  class 
of  offenders. 

TESTIMONY  OF  MEMBER  OF  COURT. 

During  the  trial  of  a  recent  case  a  member  of  the  court,  without 
being  excused  as  such,  testified  as  a  witness  upon  request  of  and 
ostensibly,  as  stated  by  the  president  thereof,  "  for  the  benefit "  of 
the  court,  his  testimony  being  adverse  to  the  interests  of  the  accused. 
In  practical  effect  he  was  a  witness  for  the  prosecution,  and,  in  view 
of  the  provisions  of  the  eighth  article  of  war,  the  Judge  Advocate 
General  held  that  his  action  in  testifying  and  thereafter  participat- 
ing in  the  proceedings  of  the  court  rendered  the  findings  and  sentence 
invalid. 

COURT   DECISIONS. 
EVIDENCE :   Federal  price  list. 

The  State  of  Washington  sued  a  militia  captain  and  his  bondsmen 
on  account  of  his  failure  to  account  for  certain  military  equipment 
received  prior  to  1913.  The  defense  was  a  general  denial  and  an 
affirmative  plea  that  defendant  had  demanded  a  board  of  survey  to 
inquire  into  the  alleged  shortage,  which  demand  had  been  arbitrarily 
refused.  At  the  trial  the  only  evidence  offered  as  to  the  value  of  the 
equipment  was  the  Federal  price  list  of  equipment  and  supplies  re- 
vised February  1, 1913.  Held,  that  plaintiff  was  properly  nonsuited, 
for  the  1913  price  list  was  no  evidence  of  the  value  of  the  goods 
received  long  prior  to  1913,  and  consequently  no  verdict  for  more 
than  nominal  damages  could  have  been  returned. 

State  V.  Buckley,  167  Pac,  1087,  Supreme  Court  of  Washington, 

JURISDICTION  OF  CIVIL  AND  MILITARY  COURTS. 

On  July  11,  1917,  a  member  of  the  National  Guard,  who  had  prior 
to  that  time  been  mustered  and  sworn  into  the  service  of  the  United 
States,  shot  and  killed  a  policeman  in  the  city  of  Newport,  Ky.  He 
was  arrested  by  a  sergeant  of  his  company,  was  committed  by  the 


96        DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

county  judge  upon  an  examination,  and  was  indicted  by  the  grand 
jur}'  on  the  charge  of  murder.  His  commanding  officer  filed  a  peti- 
tion of  habeas  corpus  praying  that  the  prisoner  be  delivered  to  the 
military  authorities  for  trial  by  a  court-martial  on  the  charges  pre- 
ferred against  him.  The  court  Jield^  that  while  the  civil  courts  have 
priority  of  jurisdiction  over  capital  crimes  committed  by  soldiers  in 
time  of  peace,  the  military  authorities  in  time  of  war,  having  con- 
current jurisdiction  with  the  civil  authorities  for  crimes  committed 
in  a  loyal  State,  have  the  prior  right.  After  reviewing  the  authori 
ties.  Judge  Cochran  said : 

"  It  is  clear,  therefore,  that  under  the  Articles  of  War  the  civil 
authorities  in  time  of  war  have  no  right  to  withhold  a  soldier  accused, 
of  a  crime  from  the  military  authorities  or  to  demand  him  from  them 
in  order  to  try  him  for  an  offense  against  the  criminal  laws  of  the 
land." 

He  held  also  that  in  this  case  the  military  authorities  had  not  waived 
any  of  their  rights  by  the  sergeant's  act  of  delivering  the  prisoner  to 
the  county  jail. 

In  re  King^  United  States  District  Court,  Eastern  District  of  Ohio. 
Case  and  Comment  for  November,  1917,  p.  495. 

SELECTIVE  DRAFT  ACT:   Interpretation,  nondeclarant  aliens. 

Relator  was  brought  before  the  court  on  a  writ  of  habeas  corpus. 
He  was  a  citizen  of  Russia,  had  never  declared  his  intention  of  be- 
coming a  citizen  of  the  United  States,  was  drafted  for  military  serv- 
ice and  ordered  to  report,  and  was  arrested  by  the  military  authori- 
ties for  not  reporting.  He  received  the  usual  notices ;  he  never  made 
any  claim  for  exemption  on  ground  of  alienage  in  the  manner  pre- 
scribed by  the  regulations.  He  alleged  that  he  had  made  certain  in- 
formal claims  and  failed  to  make  formal  claim  by  reason  of  assur- 
ances given  him  by  members  of  the  local  board  that,  being  an  alien, 
he  need  not  trouble  himself  further.  This  was  denied  by  members  of 
the  local  board.  After  the  time  for  filing  exemption  claims  had  ex- 
pired he  made  formal  claim.  The  court  stated  the  question  at  issue 
to  be  this : 

"  Is  a  person  who  failed  to  claim  exemption  on  the  ground  that  he 
was  a  nondeclarant  alien,  and  who  now  asserts  (without  contradic- 
tion) that  he  is  such  an  alien,  properly  in  the  custody  of  the  military 
authorities?  " 

The  question  is  answered  in  the  affirmative  on  the  ground  that  the 
relator  was  not  denied  a  fair  hearing  and  the  local  and  district  boards 
acted  in  strict  accordance  with  the  procedure  laid  down  by  the  regu- 
lations. The  following  excerpt  from  the  opinion  is  of  special  inter- 
est : 

"  The  remaining  question  is  whether  the  local  board  wholly  lacked 
jurisdiction.  It  is  contended  because  nondeclarant  aliens  are  ex- 
empted from  the  draft  that  no  obligation  was  placed  upon  relator 
affirmatively  to  present  his  claim  for  exemption,  and  this  is  but 
another  way  of  stating  that  by  virtue  of  the  act  itself  relator  was  auto- 
matically exempted. 

"  It  must  be  conceded  at  the  outset  that  Congress  had  the  power  to 
subject  all  persons  to  the  draft  whether  citizens  or  aliens. 

"  The  question,  then,  is  whether  from  the  structure  of  the  act  it 
was  the  intention  of  Congress  that  only  those  who  claimed  exemption 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.      J)1 

should  in  proper  cases  be  exempted,  or  whether  those  entitled  to  ex- 
emption could  disregard  the  procedure  provided  for  by  the  act  and 
the  regulations  and  show  aliunde^  as  here,  that  they  fell  within  one 
of  the  statutory  exempt  classes. 

"  The  whole  plan  of  the  act  is  undoubtedly  to  require  that  those 
who  claim  exemption  shall  affirmatively  present  their  claim  to  the 
appropriate  body  so  that  that  body  can  determine  as  a  fact  whether 
the  person  falls  within  the  exempted  classes.  When,  therefore,  no 
such  claim  is  presented  and  the  proceedings  of  the  local  and  the  dis- 
trict boards  are  regular  in  every  respect,  the  court  can  not  go  outside 
of  the  proceedings  of  the  boards  to  determine  independently  some- 
thing which  the  act  required  should  be  determined  by  these  boards." 

United  States  ex  rel.  Koopowitz  v.  Finley.  United  States  District 
Court,  Southern  District  of  New  York,  Mayer,  judge,  Nov.  3,  1917. 

The  petition  alleged  that  petitioners  were  nondeclarant  aliens  and 
subjects  of  Italy,  and  by  treaty  not  liable  to  military  service  here. 
There  were  no  allegations  that  the  draft  boards  had  acted  arbitrarily 
or  had  departed  from  the  procedure  prescribed  by  the  draft  regula- 
tions. Held^  that  the  courts  can  not  under  the  facts  set  forth  in  the 
petition  interfere  with  the  findings  of  the  draft  boards  by  resort  to 
the  writ  of  "habeas  corpus. 

United  States  ex  rel.  Troiani  v.  Heyhum.  United  States  District 
Court,  Eastern  District  of  Pennsylvania,  Dickinson,  judge,  Sept. 
10,  1917. 

SELECTIVE  DRAFT  ACT:   Interpretation,  declarant  aliens. 

The  petitioner  was  a  citizen  of  the  Kingdom  of  Spain,  who  had 
filed  his  declaration  of  intention  to  become  a  citizen  of  the  United 
States.  He  was  arrested  off  the  shore  of  Mexico  by  a  United  States 
war  vessel  and  detained  under  process  for  evading  the  selective  draft 
act.  He  made  application  for  a  writ  of  habeas  corpus,  claiming  that 
when  arrested  he  was  on  his  way  to  Spain,  and  that  he  was  not  sub- 
ject to  the  draft  act  on  account  of  the  provisions  of  the  treaty  with 
Spain  by  which  its  citizens  are  exempt  from  compulsory  military 
service  in  the  United  States  forces.  Held^  that  the  petitioner  was 
subject  to  draft;  that  the  provisions  of  the  draft  act,  when  in  conflict 
with  prior  treaty  stipulations,  prevail  over  them,  and  that  the  order 
to  show  cause  why  a  writ  of  habeas  corpus  should  not  issue  be  dis- 
charged and  the  writ  denied. 

In  re  Victor  Larrucea^  United  States  District  Court,  Southern  Dis- 
trict of  California,  Southern  Division,  Bledsoe,  judge. 
151738—20 7 


BULLETIN  75. 

OPINIONS  OF  JUDGE  ADVOCATE  GENERAL. 

ABSENCE  II,  B :   Expense  of  returning  soldiers  absent  without  leave. 

There  is  no  general  authorit}^  for  payment  of  expenses  incurred  by- 
civil  authorities  for  the  arrest  and  return  of  soldiers  absent  without 
leave  who  are  not  deserters.  In  exceptional  cases  the  Secretary  of 
War  may  authorize  the  payment  of  such  expenses  from  the  appro- 
priation, "  Contingencies  of  the  Army." 

Ops.  J.  A.  G.  242.42,  Dec.  26,  1917. 

AErHY:   Composition  and  organization:   Office  III,  C;  Assignment  of  re- 
serve officers. 

In  time  of  actual  or  threatened  hostilities  the  President  may  order 
officers  of  the  Officers'  Reserve  Corps  to  temporary  duty  with  the 
Regular  Army  in  grades  that  can  not  be  filled  by  promotion,  or  to 
duty,  permanent  or  temporary,  in  authorized  positions  in  volunteer 
or  other  organizations,  w^hich  include  the  National  Guard  drafted 
into  the  Federal  service  or  the  National  Army. 

Ops.  J.  A.  G.  210.33,  Dec.  15,  1917. 

ARMY  I:   Composition  and  organization. 

Regiments  of  Cavalry  organized  provisionally  as  Field  Artillery 
under  the  act  of  October  6,  1917  (Public,  89,  65th  Cong.  1st  sess.), 
cease  for  the  time  being  to  be  Cavalry  regiments.  An  officer  of  such 
a  reorganized  regiment  should  wear  the  insignia  and  sign  his  rank  as 
of  the  regiments  of  Field  Artillery  in  which  he  is  serving. 

Ops.  J.  A.  G.  421.7,  Dec.  1,  1917. 

ARTICLES  OF  WAR  LXIII :   DISCIPLINE  VIII :   American  Red  Cross. 

American  Red  Cross  officials  serving  with  United  States  base  hos- 
pitals in  France  are  "  persons  accompanying  or  serving  with  the 
armies  of  the  United  States  in  the  field  "  within  the  meaning  of  the 
Second  Article  of  War,  and  are  therefore  subject  to  the  military 
jurisdiction  of  the  United  States.  The  same  is  true  of  the  personnel 
of  American  Red  Cross  hospitals  in  France  which  serve  soldiers  and 
civilians  or  which  serve  civilians  only,  provided  that  they  have  been 
recognized  formally  or  informally  by  the  Army  of  the  United  States. 

Ops.  J.  A.  G.  250.4,  Dec.  21,  29,  1917. 

ARTICLES    OF   WAR   CVI,    CVII:    Construction    of   present   forty-eighth 
article  of  war. 

Both  the -legislative  history  of  the  forty-eighth  article  and  its  un- 
ambiguous language  require  the  interpretation  that  a  sentence  of 
dismissal  of  an  officer  below  the  grade  of  brigadier  general  may  be 
carried  into  execution  upon  confirmation  by  the  commanding  gen- 
eral of  the  territorial  department  or  of  tl^e  territorial  division. 

Ops.  J.  a:  G.  210.81,  Dec.  8,  1917. 
98 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 


99" 


ARTICLES  OF  WAR  LXXXII,  B:  DISCIPLINE  III;  Power  of  command- 
ing- oflScer  of  base  hospital  to  convene  special-  and  summary  courts- 
martial. 

The  coninianding  officer  of  a  base  hospital  is  the  commanding 
officer  of  a  "place  where  troops  are  on  duty"  within  the  meaning 
of  the  ninth  and  tenth  articles  of  war,  and  therefore  has  power  to 
convene  special  and  summary  courts-martial. 

Ops.  J.  A.  G.  '250.42,  Dec.  26,  1917. 

CIVIL  AUTHORITIES  I,  B :  Procedure  where  soldier  is  necessary  witness 
in  a  civil  proceeding. 

There  is  no  Federal  law  by  virtue  of  wliich  a  continuance  may  be 
secured  as  of  right  in  a  proceeding  before  a  civil  court  by  reason  of 
absence  of  a  necessary  witness  in  the  military  service.  Depositions 
of  such  witness  may  be  taken  upon  application  to  the  commanding 
officer  under  whom  he  is  serving  where  the  circumstances  are  such 
that  the  military  duties  of  the  witness  will  not  be  interfered  with. 
The  taking  of  depositions  of  men  serving  in  the  expeditionary  forces 
abroad  ought  not  to  be  permitted. 

Ops.  J.  A.  G.  013.26,  Dec.  18,  1917. 

COMMUNICATIONS  II:  Franking  privilege  for  applications  for  family 
allowances  and  insurance. 

In  forwarding  applications  for  family  allowances  and  for  insur- 
ance, officers  may  use  penalty  envelopes ;  but  these  may  not  be  regis- 
tered without  payment  of  the  registration  fee. 

Ops.  J.  A.  G.  311.17,  Dec.  21,  1917. 

DESERTION  V,  B,  C :  Amount  of  reward  for  delivery  at  place  other  than 
nearest  military  post. 

Where  a  deserter  is  delivered  to  the  military  authorities  at  a  place 
other  than  the  nearest  military  post,  as,  for  example,  to  the  local 
draft  board  or  to  a  detachment  or  guard  sent  to  receive  him,  the 
person  so  delivering  him  is  entitled  to  a  reward  of  $50  less  the  esti- 
mated cost  of  delivering  him  to  the  nearest  Army  camp  or  post. 

Ops.  J.  A.  G.  251.211,  Dec.  4,  7, 1917. 

DISCHARGE  XX:   Discharge  of  National  Guard  officers. 

An  efficiency  board  convened  pursuant  to  section  77  of  the  national 
defense  act  completed  its  action  prior  to  August  5,  1917,  recommend- 
ing the  discharge  of  certain  officers  of  the  Illinois  National  Guards 
but  no  order  w  as  issued  thereon  until  after  the  draft  of  said  officers 
on  August  5,  1917. 

Ileldy  That  no  valid  order  could  be  issued  thereon,  and  that  said 
officers  may  be  discharged  from  service  only  under  section  9  of  the 
selective  draft  act.  The  discharge  may  be  made  by  the  President 
for  any  cause  which,  in  his  judgment,  w^ould  promote  the  public 
service;  or  it  may  be  made  by  the  President  after  determination  by 
a  board  of  officers  that  the  officers  in  question  are  unfit. 

Ops.  J.  A.  G.  210.81,  Dec.  12,  1917. 

DISCIPLINE  XIV,  C:   Construction  of  paragraph  376,  M.  C.  M.,  1917. 

Under  paragraph  376  of  the  Manual  for  Courts-Martial,  1917,  the 
reviewing  authority  is  not  required  to  write  out  in  his  own  hand  the 


100     DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

order  of  approval,  disapproval,  or  other  action  taken  upon  proceed- 
ings of  courts-martial.  It  is  sufficient  if  he  signs  such  action  with 
his  own  hand. 

Ops.  J.  A.  G.  250.42,  Dec.  26,  1917. 

DISCIPLINE  VIII,  G:   Jurisdiction  of  courts-martial  as  to  offenses  com- 
mitted prior  to  enlistment. 

Cases  arising  under  the  eighty-first  article  of  war  (relieving,  corre- 
sponding with,  or  aiding  the  enemy)  or  under  the  eighty-second 
article  of  war  (spies)  may  be  tried  by  courts-martial  regardless  of 
whether  the  oifenders  were  subject  to  military  law  at  the  time  the 
offenses  were  committed.  And  under  the  fifty-fourth  article  of  war 
a  soldier  may  be  tried  for  fraudulent  enlistment,  though  the  act  was 
committed  prior  to  his  induction  into  the  military  service.  But  in 
the  absence  of  statute  the  general  rule  applies  that  a  court-martial 
has  no  jurisdiction  of  an  offense  committed  prior  to  the  entry  of  the 
offender  into  the  military  service. 

Ops.  J.  A.  G.  250.4,  Dec.  20,  1917. 

DISCIPLINE   VIII,    G:   Jurisdiction   of   courts-martial   over   prisoners   of 
war. 

General  courts-martial  have  jurisdiction  to  try  prisoners  of  war  for 
military  offenses  and  for  offenses  of  a  civil  nature.  It  is  inadvisable 
under  the  provisions  of  the  present  Manual  for  Courts- Martial  (see 
par.  3(a))  to  resort  to  a  provost  court  or  to  a  military  commission 
in  such  cases. 

Ops.  J.  A.  G.  383.6,  Dec.  27,  1917. 

DISCIPLINE   XII,   B,   3    e:    Sentence   of   forfeiture   of  pay — Effect   upon 
allotments. 

That  portion  of  pay  required  to  be  allotted  by  the  provisions  of 
Article  II  of  the  war  risk  insurance  act  of  October  6,  1917,  is  not 
subject  to  forfeiture  by  sentence  of  a  court-martial,  but  any  portion 
voluntarily  allotted  is  subject  to  such  forfeiture.  A  sentence  impos- 
ing forfeiture  of  a  part  of  pay  means  forfeiture  of  the  specified  part 
of  that  portion  of  pay  not  covered  by  compulsory  allotment. 

Ops.  J.  A.  G.  243,  Dec.  17,  1917. 

ENLISTMENT  I,  A,  3,  8,  B:   Persons'authorized  to  take  enlistments. 

An  enlistment  is  accomplished  by  executing  the  contract  of  enlist- 
ment and  taking  the  oath  of  allegiance;  but  this  can  be  done  only 
when  authorized  by  some  person  acting  for  the  Government  of  the 
United  States.  Otherwise  any  person  authorized  to  administer  an 
oath  might  accept  recruits  and  bind  the  Government.  But  where 
a  person  not  regularly  enlisted  has  been  treated  and  recognized  as  an 
enlisted  man  by  the  Government,  he  may  be  properly  enlisted  and  his 
enlistment  dated  back. 

Ops.  J.  A.  G.  342,  Dec.  15,  1917. 

ENLISTED  RESERVE  CORPS :  Call  to  service. 

A  member  of  the  Enlisted  Eeserve  Corps  who  is  unconscious  at  the 
time  of  receipt  of  call  to  active  duty  and  remains  unconscious  there- 
after till  death  is  never  brought  into  the  military  service. 

Ops.  J.  A.  G.  220.46,  Dec.  5,  1917. 


DIGEST  OP  OPINIONS  JUDGE  ADsZOCA^rti  GXJjTERiUrS  <)P  ARMY.     101 

GOVERNMENT  AGENCIES  III:   mafxi'cmXXojil  ni ^6f\\p^:^  J^Hnds  of  dis- 
banded organizations.  '       '    *"••»-    • 

Where  an  organization's  post  exchange  accumulated  a  fund  which 
was  not  distributed  pro  rata  among  its  members  upon  the  disbanding 
of  the  organization,  and  its  former  members  are  no  longer  in  the  serv- 
ice as  enlisted  men  but  are  in  the  service  as  officers,  the  fund  should 
be  covered  into  the  United  States  Treasury  as  "Miscellaneous  re- 
ceipts," for  officers  are  not  entitled  to  participate  in  the  benefits  of  a 
company  fund. 

Ops.  J.  A.  G.  123.61,  Dec.  22,  1917. 

GOVERNMENT  AGENCIES  III:   Distribution  of  company  fund  upon  re- 
organization. 

Where  upon  reorganization  of  a  company  a  percentage  of  the  en- 
listed men  thereof  are  transferred  to  another  organization,  a  pro  rata 
share  of  the  company  fund  should  be  transferred  to  the  organization 
to  which  they  are  transferred. 

Ops.  J.  A".  G.  123.7,  Dec.  20,  1917. 

GOVERNMENT  AGENCIES  II :  Liability  of  post  exchange  to  war-revenue 
tax. 

Tobacco  sold  by  a  post  exchange  is  subject  to  the  war-revenue  tax 
imposed  by  section  403  of  the  act  of  October  3,  1917  (Public,  No.  50, 
65th  Cong.). 

Ops.  J.  A.  G.  012.23,  Dec.  6,  1917. 

OFFICE   III,   A,   B:   Appointments   and   promotions  in   Porto   Rico   regi- 
ments. 

The  Porto  Rico  Eegiment  of  Infantry  is  a  component  part  of  the 
Regular  Army.  Consequently,  temporary  vacancies  therein  resulting 
from  the  appointment  of  officers  to  higher  grades  in  the  forces  other 
than  the  Regular  Army  are  to  be  filled,  as  provided  by  section  8  of  the 
act  of  May  18,  1917,  by  temporary  promotions  and  appointments 
according  to  seniority  in  rank  of  officers  holding  commissions  in  the 
next  lower  grade  in  said  regiment. 

Ops.  J.  A.  G.  322.81,  Dec.  1,  1917. 

OFFICE  IV,  E,  2 :   Dismissal  of  provisional  officers. 

Under  section  1  of  the  selective  draft  act  the  President  is  given 
power  to  terminate  provisional  appointments  whenever  it  is  deter- 
mined that  the  officer  is  unfit  for  permanent  appointment.  G.  O.  76, 
W.  D.,  June  26, 1917,  lays  down  the  rules  prescribed  by  the  President 
for  determining  the  fitness  of  such  officers.  The  procedure  therein 
prescribed  must  be  followed. 

Ops.  J.  A.  G.  210.81,  Dec.  1,  1917. 

OFFICE  IV,  A,  I:   Effect  of  acceptance  of  commission  in  Officers'  Beserve 
Corps  by  drafted  National  Guard  officer. 

An  officer  of  the  National  Guard  of  a  State  was  drafted  and  thus 
became  an  officer  in  the  National  Guard  component  of  the  Aimy  of 
the  United  States.  Thereafter  he  accepted  a  commission  in  the 
Officers'  Reserve  Corps. 

Held,  j:hat  he  thereby  vacated  his  commission  in  the  National 
Guard  component  of  the  Army. 

Ops.  J.  A.  G.  324.24,  Dec.  29,  1917. 


102     DIGEST  OF  OPINIONS  JTJPGE  ADVOCATE  GENEEAL  OF  ARMY. 

OFFICE  III,/A.,  ^.',  Qu'alificatious  fs^r  appointment  and  promotion  in  Medi- 
cal and  Denial  Corps. 

The  act  of  October  6,  1917,  repeals  section  10  of  the  act  of  June  3, 
1916,  in  so  far  as  it  requires  24  years'  service  as  a  qualification  for 
major  in  the  Dental  Corps  and  limits  the  number  of  majors  to  15. 
The  same  act  makes  first  lieutenants  in  the  Medical  Corps  of  the 
Regular  Army  and  National  Guard  eligible  to  promotion  as  captains 
upon  examination  prescribed  by  the  Secretary  of  War.  The  Secre- 
tary need  not  act  in  the  premises  unless  he  so  desires. 

Ops.  J.  A.  G.  321.6,  Dec.  5,  1917. 

OFFICE  III,  A,  B:    Temporary  promotions  in  Regular  Army. 

The  term  "  temporary  promotion,"  as  used  in  the  National  Army 
act  of  May  18,  1917,  and  in  section  114,  national  defense  act  of  June 
3,  1916,  contemplates  promotion  as  ordinarily  understood  in  military 
legislation.  Temporary  promotion  by  seniority  contemplates  that 
the  appointing  power  shall  be  satisfied  that  the  officer  about  to  be 
promoted  is  qualified.  No  officer  is  entitled  to  promotion  regardless  of 
his  qualifications.  Failure  of  an  officer  to  discharge  the  duties  of  a 
higher  grade  in  the  National  Army  may  and  should  be  regarded 
by  the  President  as  satisfactory  evidence  of  his  disqualification  to 
perform  the  duties  of  the  same  grade  in  the  Regular  Army.  It  is 
within  the  powder  of  the  War  Department  to  prescribe  how  long  an 
officer  who  has  demonstrated  his  disqualification  for  higher  command 
in  the  National  Army  shall  remain  ineligible  for  temporary  promo- 
tion in  the  Regular  Army  and  upon  what  conditions  he  shall  become 
eligible  for  such  promotion. 

Ops.  J.  A.  G.  210.33,  Nov.  27,  1917. 

OFFICE  III,  C:    Transfer  of  officer  to  another  component. 

All  officers,  except  those  of  the  Regular  Army  and  those  of  the 
Officers'  Reserve  Corps,  w^hether  they  have  been  commissioned  in  the 
so-called  National  Guard  component  or  in  the  additional  force  called 
the  National  x\rmy,  have  similar  status  and  obligations  and  are  trans- 
ferable from  one  component  to  another.  Regular  Army  officers,  how- 
ever, may  not  be  transferred  to  the  other  forces,  but  they  may  be 
appointed  thereto  in  the  manner  prescribed  by  statute  and  not  other- 
wise. Officers  of  the  other  forces  can  not  become  officers  of  the  Regu- 
lar Army  except  by  original  appointment  as  the  statute  prescribes. 
Officers  of  the  Reserve  Corps  have  a  fixed,  limited  tenure  of  office  and 
a  specified  use.  These  incidents  prevent  homogeneity  with  the  other 
forces.  Consequently,  a  National  Guard  officer  can  not  be  trans- 
ferred to  the  Officers'  Reserve  Corps  without  a  prior  return  to  a 
civilian  status. 

Ops.  J.  A.  G.  210.33,  Nov.  27,  1917. 

OFFICE  IV,  A,  1  a:   Vacation  of  office  by  accepting-  other  office. 

An  acceptance  of  a  Regular  Army  commission,  Avhether  perma- 
nent or  temporary,  in  a  lower  grade  than  that  held  by  an  officer  of 
the  Regular  Army  in  the  temporary  forces  does  not  affect  the  status 
of  the  officer  in  the  temporary  forces,  for  the  act  of  May  18,  1917, 
provides  that  officers  of  the  Regular  Army  appointed  to  higher 
grades  in  such  temporary  forces  shall  not  vacate  their  permanent 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.     103 

commissions  nor  be  prejudiced  in  their  relative  or  lineal  standing  in 
the  Regular  Army. 

Ops.  J.  A.  G.  210.142,  Dec.  12,  1917. 

PAY  AND  ALLOWANCES  I,  C,  5:   Computing  prior  service  of  member  of 
Nurse  Corps  (female). 

A  member  of  the  Reserve , Nurse  Corps  called  to  active  duty  on 
June  18,  1917,  had  theretofore  had  service  in  the  Army  Nurse  Corps 
and  Navy  Nurse  Corps,  so  that  her  total  period  of  service  amounted 
to  about  three  years  and  four  months. 

HeM^  that  she  was  entitled  to  have  all  prior  service  in  both  Army 
and  Navy  counted  in  computing  her  pay  under  the  act  of  March  23, 
1910  (sec.  1832,  U.  S.  Comp.  St.  1916)  and  was  entitled  to  be  paid 
as  of  the  second  period  of  three  years'  service. 

Ops.  J.  A.  G.  322.31,  Dec.  13,  i9l7. 

PAY  AND  ALLOWANCES  II:   Heat,  light,  and  quarters  for  Army  field 
clerks. 

Army  field  clerks  who  have  not  had  12  years'  service,  so  as  to  come 
within  the  provisions  of  the  act  of  August  29,  1916  (39  Stat.  625), 
are  not  entitled  to  have  quarters  rented  for  them  or  to  be  paid  com- 
mutation for  heat  and  light  on  the  same  basis  as  a  second  lieutenant. 

Ops.  J.  A.  G.  245.8,  Dec.  18,  1917. 

TAY  AND  ALLOWANCES  I,  B,  6:   Longevity  pay — Prior  service  in  Na- 
tional Guard. 

An  officer  of  the  National  Army  or  of  the  Reserve  Corps  can  not 
count  prior  service  in  the  National  Guard  in  computing  service  for 
longevity  pay.  Such  service  may  be  so  counted  only  by  officers  draft- 
ed as  National  Guard  officers,  and  only  so  long  as  they  continue  in 
service  under  the  draft. 

Ops.  J.  A.  G.  241.12,  Dec.  17,  1917. 

PAY  AND  ALLOWANCES  I,  C:   Pay  of  enlisted  men  of  the  Philippine 

Scouts. 

Enlisted  men  of  the  Philippine  Scouts  are  not  entitled  to  the  in- 
creases of  pay  authorized  by  section  10  of  the  selective-draft  act  of 
May  18,  1917.  Their  rates  of  pay  are  fixed  by  the  Secretary  of  War 
under  authority  of  section  36,  act  of  February  2,  1901  (31  Stat.  757). 

Ops.  J.  A.  G.  322.82,  Dec.  13,  1917. 

PAY  AND  ALLOWANCES  I,  B :   Pay  of  flying  cadet. 

A  flying  cadet  who  has  been  commissioned  and  is  awaiting  orders 
for  service  over  seas,  but  who  is  not  under  duty  to  make  aerial  flights 
while  awaiting  such  orders,  is  not  entitled  to  flving  pav. 

Ops.  J.  A.  G.  241.1,  Dec.  10,  1917. 

TAY  AND  ALLOWANCES  II,  A,  2  a  (3)  :   Transportation  of  baggage. 

During  the  present  emergency  an  officer  ordered  to  duty  in  the  field 
is  entitled  to  have  his  authorized  allowance  of  baggage  shipped  from 
his  last  permanent  station  to  any  place  to  which  the  cost  of  transport- 
ing same  does  not  exceed  the  cost  of  transporting  it  to  the  place  to 
which  he  is  ordered.  But  when  he  has  once  received  such  allowance 
he  is  not  entitled  to  another  such  allowance,  even  though  he  is  th«»re- 
iifter  ordered  to  field  dutv  in  another  place. 

Ops.  J.  A.  G.  524.21,  Dec.  3,  1917. 


104     DIGEST   OF  OPINIONS  JUDGE  ADVOCATE  GENEKAL  OF  ARMY. 

PUBLIC  MONEY  I,  M:   Money  received  from  sale  of  garbage. 

Since  the  United  States  has  arranged  for  the  collection  and  disposal 
of  garbage  from  military  camps,  it  can  no  longer  be  regarded  as 
abandoned  property.  Money  received  from  its  sale  must,  therefore^ 
be  deposited  in  the  United  States  Treasury.  The  opinion  of  January 
11, 1912  (C  23876),  is  no  longer  applicable. 

Ops.  J.  A.  G.  131.1,  Dec.  3,  1917.      * 

RETIREMENT  II:   Rank  on  retirement. 

An  enlisted  man  after  30  years'  service  is  eligible  for  retirement 
under  existing  laws  with  the  noncommissioned  rank  which  he  then 
holds,  whether  in  the  Regular  Army  or  in  the  other  forces  of  the  Army 
of  the  United  States. 

Ops.  J.  A.  G.  220.85,  Dec.  10,  1917. 

RETIREMENT  I,  B,  5 :   Retirement  of  drafted  National  Guard  oflacer. 

Under  section  112  of  the  national  defense  act  of  June  3,  1916,. 
officers  of  the  National  Guard  drafted  into  the  service  of  the  United 
States  are  entitled  to  the  benefits  of  the  pension  laws.  By  section  2 
of  the  selective  draft  act  of  May  18,  1917,  the  laws  and  regulations 
governin^g  the  Regular  Army,  except  as  to  promotions,  apply  to  such 
officers  so  drafted  in  so  far  as  such  laws  and  regulations  are  ap- 
plicable to  persons  whose  permanent  retention  in  the  military  service 
IS  not  contemplated  by  existing  law.  It  is  not  contemplated  that 
officers  drafted  into  the  service  are  to  be  permanently  retained 
therein.  Therefore  the  laws  governing  retirement  do  not  apply  to 
them,  but  the  pension  laws  do  apply. 

Ops.  J.  A.  G.  210.85,  Dec.  19,  1917. 

RETIREMENT  II,  A:   Service  to  be  counted  by  enlisted  man. 

An  enlisted  man  of  the  Regular  Army  who  has  been  transferred 
to  one  of  the  other  component  forces  of  the  Army  of  the  United 
States  may,  if  he  has  had  30  years'  service,  be  retired  while  serving 
with  the  forces  to  which  he  has  been  transferred,  and  in  computing 
the  period  of  his  service  he  is  entitled  to  count  all  service  in  any 
branch  of  the  armed  forces  of  the  United  States. 

Ops.  J.  A.  G.  220.85,  Dec.  4,  1917. 

SELECTIVE-DRAFT  ACT :   Drafted  minors. 

Where  a  registrant  is  certified  by  the  district  board  for  military 
service  as  being  within  the  draft  age,  he  can  not  be  discharged  from 
the  military  status  thus  imposed  upon  him  either  upon  his  own  ap- 
plication or  upon  application  of  his  parent  or  guardian  upon  the 
ground  that  he  is  not  in  fact  of  draft  age.  In  the  absence  of  fraud 
the  decision  of  the  board  so  certifying  is  final. 

Ops.  J.  A.  G.  324.71,  Dec.  27,  1917. 

SELECTIVE  DRAFT  ACT:  Oflacial  authorized  to  make  afladavit  to  secure- 
deferred  classification  of  employee. 

The  rules  and  regulations  prescribed  by  the  President  under  date 
of  June  30,  1917,  permit  the  commander  or  officer  having  command,, 
the  collector  or  his  deputy,  a  person  having  direct  supervision  of 
persons  employed  by  the  United  States,  or  any  official  of  the  Govern- 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ABMY.     105 

ment  of  the  United  States  having  direct  supervision  and  control  of 
the  department,  commission,  board,  bureau,  division,  or  branch  of 
the  Government  in  which  the  person  seeking  deferred  classification  is 
employed,  to  execute  the  affidavit  supporting  the  claim  for  deferred 
classification.  An  assistant  engineer  in  charge  of  a  river  and  harbor 
district  is  an  official  of  the  Government  of  the  United  States  author- 
ized to  make  such  affidavit. 

Ops.  J.  A.  G.  013.14,  Dec.  24, 1917. 

TAX  IV:   War-revenue  tax  on  motor  vehicles. 

The  war-revenue  act  of  October  3,  1917,  imposes  a  tax  upon  all 
automobiles,  etc.,  sold  by  the  manufacturer,  producer,  or  importer, 
which  is  required  to  be  paid  by  said  manufacturer,  producer,  or  im- 
porter. There  is  no  authority  of  law  under  which  motor  vehicles  pur- 
chased by  the  United  States  may  be  exempted  from  the  tax  in  order 
that  the  purchase  price  may  be  correspondingly  reduced  to  the  Gov- 
ernment. 

Ops.  J.  A.  G.  012.23,  Dec.  21,  1917. 


DECISIONS  OF  COMPTROLLER  OF  THE  TREASURY. 

PROMOTIONS  TO  VACANCIES  IN  REGULAR  ARMY  CAUSED  BY  AP- 
POINTMENTS IN  NATIONAL  ARMY. 

Paragraph  1260  of  the  Army  Kegulations  provides : 

"A  person  appointed  to  the  Army,  or  receiving  an  appointment 
to  a  new  office  therein,  is  entitled  to  pay  from  the  date  of  acceptance 
only.  If  the  appointment  creates  vacancies  to  be  filled  by  promotion, 
the  promoted  officers  are  entitled  to  pay  of  the  new  grade  from  the 
date  of  acceptance  of  the  appointee.  In  all  other  cases  of  promotion 
the  officer  is  entitled  to  pay  from  the  date  of  the  occurrence  of  the 
vacancy." 

The  appointment  of  an  officer  of  the  Regular  Army  to  a  command 
in  an  organization  composed  of  members  taken  from  the  National 
Guard  would  be  to  a  new  office  within  the  meaning  of  said  regula- 
tion. It  therefore  follows  that  the  date  when  the  appointment  is 
accepted,  or,  in  other  words,  the  "  date  of  acceptance  of  the  ap- 
pointee," is  the  date  from  which  officers  of  the  Regular  Army  tem- 
porarily promoted  under  section  114  of  the  national-defense  act  as 
a  consequence  of  said  appointment  will  be  entitled  to  pay  of  the 
grade  to  which  they  are  promoted. 

Taking  the  oath  of  office  after  an  appointment,  or  after  confirma- 
tion, when  that  is  necessary,  constitutes  an  acceptance  of  the  ap- 
pointment. An  acceptance  may  also  be  implied  by  entering  upon  the 
discharge  of  the  duties  of  the  office  after  appointment,  or  after  con- 
firmation, when  that  is  necessary,  before  taking  the  oath.  (See  4 
Comp.  Dec.  496.) 

Comp.  of  Treas.  Nov.  26,  1917. 


106     DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL   OF  ARMY. 

DECISIONS  OF  THE  DIRECTOR  OF  THE  BUREAU   OF   WAR-RISK 

INSURANCE. 

PERSONS  ENTITLED  TO  WAR-RISK  INSURANCE,  AND  OTHER  BENE- 
FITS OF  THE  ACT  OF  OCTOBER  6,  1917. 

(1)  Field  clerks^  Quartermaster  Corps. — Field  clerks,  Quarter- 
master Corps,  are  within  the  terms  of  the  act  as  enlisted  men. 

(2)  Army  field  clerks. — Army  field  clerks  have  the  same  military 
status  as  field  clerks,  Quartermaster  Corps,  and  are  within  the  terms 
of  the  act  as  enlisted  men. 

(3)  Members  of  training  camps. — Members  of  training  camps  au- 
thorized by  law  are  within  the  terms  of  the  act. 

(4)  Students  in  aviation  camps. — Students  in  aviation  camps  who 
are  enlisted  men  are  within  the  terms  of  the  act. 

(5)  Medical  officers^  Public  Health  Service. — Officers  of  the  Pub- 
lic Health  Service  when  detailed  for  duty  with  the  Army  or  Navy 
are  within  the  terms  of  the  act  as  officers  in  the  active  service  of  the 
United  States.     (See  T.  D.  8,  W.  R.  (8),  as  to  "  contract  surgeons.") 

(6)  Male  nurses^  enlisted. — Male  nurses  who  are  enlisted  men  of 
the  Medical  Department  are  within  the  terms  of  the  act.  (But  see 
T.  D.  8,  W.  R.  (9),  as  to  civilians  employed  as  "contract  nurses.") 

(7)  Metired  officers  or  men  ordered  to  active  duty. — Officers  and 
men  on  the  retired  list  who  are  ordered  to  active  duty  by  the  War 
Department  or  Navy  Department  are  in  active  service  and  are 
within  the  terms  of  the  act. 

(8)  Personnel  of  Lighthouse  Service. — The  personnel  of  the  Light- 
house Service,  transferred  to  the  service  and  jurisdiction  of  the  War 
and  Navy  Departments  by  Executive  order  pursuant  to  the  act  of 
August  29,  1916,  are  within  the  terms  of  the  act  of  October  6,  1917. 

PERSONS  NOT  ENTITLED  TO  THE  BENEFITS  OF  THE  ACT  OF  OCTO- 
BER 6,  1917. 

(1)  Cadets  at  West  Point  and  midshipmen  at  Annapolis. — Cadets 
at  West  Point  and  midshipmen  at  Annapolis  who  are  not  assigned 
to  active  service  are  not  within  the  terms  of  the  act. 

(2)  Cadets  and  cadet  engiTieers,  Coast  Guard. — Cadets  at  the 
Coast  Guard  Academy  and  cadet  engineers  in  the  Coast  Guard  who 
are  not  assigned  to  active  service  are  not  within  the  terms  of  the  act. 

(3)  Russian  Railway  Service  Corps. — Men  in  the  Russian  Rail- 
way Service  Corps  are  not  within  the  terms  of  the  act. 

(4)  Draftsmen  in  Engineer  Corps. — Draftsmen  in  the  Engineer 
Corps  are  civilian  employees  in  the  Military  Establishment  obtained 
by  the  department  through  the  civil  service  and  are  not  within  the 
terms  of  the  act.   . 

(5)  Field  clerks.,  Engineer  Corps. — The  so-called  field  clerks  in  the 
Engineer  Corps  are  civilian  employees  who  have  no  military  status. 
They  are  not  within  the  terms  of  the  act. 

(6)  Civilian  field  clerks^  Signal  Corps. — Civilian  field  clerks.  Sig- 
nal Corps,  are  civilian  employees  in  the  Military  Establishment  and 
are  not  within  the  terms  of  the  act. 

(7)  Postal  agents  serving  in  France. — Postal  agents  sent  to  France 
by  the  Post  Office  Department  to  handle  field  mail  for  the  troops  are 
civilian  employees  and  are  not  within  the  terms  of  the  act. 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.      107 

(8)  Contract  surgeons. — Contract  surgeons  are  civilians  under  em- 
ployment by  the  United  States  by  contract  for  their  personal  services 
as  medical  attendants  to  the  troops  and  are  not  within  the  terms  of 
the  act.  (See  T.  D.  7,  W.  R.  (5) ,  as  to  medical  officers,  Public  Health 
Service.) 

(9)  Contract  nurses. — Civilians  employed  as  "contract  nurses"  in 
the  Army  or  Navy  are  not  within  the  terms  of  the  act.  (But  see 
T.  D.  7,  W.  R.  (6),  as  to  enlisted  male  nurses.) 

33  Treas.  Dec.  r)5-67,  T.  D.  7,  W.  E.  T.  D.  8,  W.  R.  Dec.  12,  1917. 


NOTES  ON  MILITARY  JUSTICE. 
CONDUCT  DISGRACEFUL  TO  THE  SERVICE. 

An  officer  of  the  Rei^iilar  Army  was  recently  brought  to  trial  for 
being  drunk  at  a  military  hop,  the  charge  being  laid  under  the  ninety- 
sixth  article  of  war.  He  pleaded  guilty,  was  so  found  by  the  court, 
and  sentenced  to  be  reprimanded  and  reduced  in  rank  25  files.  In 
administering  the  reprimand  the  reviewing  authority  remarked  that 
the  accused  had  been  tried  three  times  for  drunkenness  during  a 
preceding  period  of  less  than  eight  months.  The  following  comment 
with  reference  to  the  charge  preferred  in  this  case  and  to  the  punish- 
ment imposed  appeared  in  the  Acting  Judge  Advocate  General's 
review  of  the  case :  ^ 

"  This  record  indicates  that,  prior  to  this  trial,  the  accused  had 
been  tried  three  times  for  drunkenness  within  the  preceding  eight 
months.  This  fact  must  have  been  known  to  his  superior  officers,  and 
particularly  to  those  who  are  responsible  for  the  charges  in  this  case. 
IJnder  these  circumstances,  to  charge  the  accused  with  violation  of 
the  ninety-sixth  rather  than  with  violation  of  the  ninety-fifth  article 
of  war  comes  very  near  being  an  official  condonation  of  his  offense 
prior  to  trial,  and  an  invitation  to  the  court  to  award  a  sentence  less 
than  dismissal  from  the  service  *  *  *.  The  sentence  awarded  by 
the  court  in  this  case  does  violence  to  the  sense  of  military  justice 
which  should  prevail  in  the  service.^  The  accused  was  drunk  in  uni- 
form at  a  hop,  *  *  *  which  was  largely  attended  by  members  of 
the  service  as  well  as  by  some  civilians.  He  should  have  been  charged 
with  conduct  unbecoming  an  officer  and  a  gentleman,  upon  a  convic- 
tion of  which  dismissal  would  have  been  mandatory." 

Dismissal  of  the  accused  from  the  service  under  the  one  hundred 
and  eighteenth  article  of  war  was  recommended.  During  the  trial 
of  this  case  a  captain,  called  as  a  witness  for  the  prosecution,  testi- 
fied, in  part,  as  lollows: 

"  Q.  Well,  how  could  his  conduct  have  been  disgraceful  to  himself 
while  he  w^as  in  uniform  and  not  be  disgraceful  to  the  service  ? 

"A.  That's  a  question,  I  think,  sir,  that  depends  on  the  viewpoint 
of  each  individual.  I  do  not  feel  that  at  a  hop  of  that  nature  that  a 
man  who  is  drunk  to  the  extent  that  (the  accused)  was  degrades  the 
service  in  the  minds  of  anyone  who  is  there.  I  base  this  assumption 
on  the  fact  that  other  officers  have,  to  my  knowledge,  been  drunk  at 
transport  hops,  and  I  have  never  heard  anyone  say  that  they  felt 
the  service  has  been  discredited  in  any  way,  and  no  action  had  been 
taken  against  them.     Had  many  civilians  been  present  and,  to  my 


108     DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.  . 

knowledge,  have  seen  (the  accused),  then  the  service  might  have 
been  discredited;  but  without  a  Imowledge  of  the  feelings  of  those 
civilians,  I  am  unable  to  state  positively  that  in  their  minds  discredit 
was  brought.  That  question  was  brought  up  at  the  time,  to  my 
knowledge,  of  the  drawing  of  these  charges  and  because  of  the  fact 
that  the  officers  concerned  in  the  preparation  of  the  charges  did  not 
know  the  minds  of  such  civilians  as  were  present,  a  statement  to  the 
effect  that  it  was  a  disgrace  to  the  service  was  purposely  left  out." 

In  commenting  upon  this  testimony,  the  Acting  Judge  Advocate 
General  used  the  following  language : 

"  The  view  expressed  by  (the  witness)  is  highly  discreditable  to  the 
service  to  which  he  belongs.  It  implies,  to  some  extent  at  least,  that 
the  service  can  not  be  discredited  in  its  own  eyes,  and  that  the  conduct 
of  an  officer  in  uniform,  unless  witnessed  and  considered  discreditable 
by  civilians,  should  not  generally  be  regarded  as  'discrediting  the 
service.  Views  such  as  this  should  not  be  allowed  to  go  unchallenged. 
The  service  should  hold  its  own  standards  in  such  high  esteem  that 
outside  opinions  should  not  be  necessary  in  determining  what  conduct 
shall  be  regarded  as  a  violation  of  or  departure  from  such  standards." 

PROCEDURE  ON  REVISION :   Constitution  of  court. 

In  a  recent  case  it  was  necessary  for  the  reviewing  authority  to 
return  the  record  of  trial  of  a  soldier  convicted  of  larceny  to  the  court 
with  directions  to  reconvene  and  correct  certain  errors  therein,  which 
was  done.  Upon  examination  of  the  record  in  the  office  of  the  Judge 
Advocate  General  it  was  found  that  the  proceedings  in  revision  were 
invalid  for  the  reason  that  a  member  of  the  court  absent  at  the  trial 
participated  therein.  The  record  was  returned  to  the  reviewing 
authority,  who  then  issued  an  order  setting  the  sentence  aside  as  being 
invalid.  No  reason  is  apparent  for  not  again  reconvening  the  court 
in  order  that  it  might  correct  the  record  in  proper  proceedings  in 
revision.  By  this  action  of  the  reviewing  authority  the  trial  was 
rendered  ineffectual,  and  a  soldier  convicted  of  a  crime  involving 
moral  turpitude  unnecessarily  escaped  merited  punishment. 

PROCEDURE  ON  REVISION :   Taking  of  new  evidence. 

A  soldier  was  recently  found  not  guilty  by  the  court  of  sleeping  on 
post  in  time  of  war.  The  reviewing  authority  returned  the  record  of 
trial  to  the  court  with  directions  to  reconvene  and  reconsider  its  find- 
ings, expessing  the  view  that  the  evidence  of  record  clearly  established 
the  guilt  of  the  accused.  The  court  thereupon  reconvened,  called 
another  witness,  and  proceeded  to  take  additional  testimony  in  the 
case,  at  the  conclusion  of  which  it  found  the  accused  guilty  and  im- 
posed a  sentence.  The  reviewing  authority  very  properly  disapproved 
the  proceedings,  findings,  and  sentence,  with  the  appropriate  comment 
that  "  this  introduction  of  new  evidence  after  the  case  was  closed  was 
most  improper  and  illegal." 

REVIEWING  AUTHORITY :   Power  of  disapproval. 

In  the  case  of  a  soldier  tried  and  convicted  on  October  22,  1917,  of 
desertion  in  time  of  war,  the  reviewing  authority  returned  the  record 
of  trial  to  the  court  with  the  comment  that  "  the  record  *  *  * 
wholly  fails  to  show  an  intent  on  the  part  of  "  the  accused  "  to  desert 
*     *     *     and  no  facts  appear  therein  from  which  such  intent  can  be 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.      109 

presumed.  The  court  will  therefore  reconvene  for  further  considera- 
tion of  the  case."  In  compliance  with  such  instructions,  the  court 
reconvened  November  16,  1917,  revoked  its  former  sentence,  and  im- 
posed a  new  one,  but  did  not  alter  its  findings. 

The  forty-seventh  article  of  war  expressly  empowers  the  reviewing 
authority  to  "  approve  or  disapprove  a  finding,  and  to  approve  only 
so  niuch  of  a  finding  of  guilty  of  a  particular  offense  as  involves  a 
finding  of  guilty  of  a  lesser  included  offense  when*"  in  his  opinion, 
**  the  evidence  of  record  requires  a  finding  of  only  the  lesser  degree  of 
guilt,  and  *  *  *  to  approve  or  disapprove  the  whole  or  any  part 
of  the  sentence." 

The  reviewing  authority  had  ample  power,  and  it  was  his  duty,  to 
act  upon  the  findings  and  sentence  in  accordance  with  his  view  of  the 
evidence.  By  his  action  in  this  case  he  not  only  permitted  a  finding 
of  guilty  of  desertion  in  time  of  war  not  sustained  by  the  evidence  to 
stand,  but  he  prolonged  the  confinement  of  the  accused  practically  a 
month. 

BEVIEWING   AUTHORITY:   Procedure  where   sentence   is   improper   in 
form. 

In  the  case  of  a  soldier  recently  convicted  of  disrespect  tow^ard  a 
commissioned  officer,  willful  destruction  of  private  property,  and  as- 
sault with  intent  to  do  bodily  harm,  the  record  of  trial  was  returned 
by  the  Judge  Advocate  General  to  the  reviewing  authority  for  fur- 
ther action,  for  the  reason  that  proceedings  in  revision  for  the  correc- 
tion of  a  sentence  improper  in  form  but  legally  sufficient  were  invalid. 
Instead  of  reconvening  the  court,  to  which  no  legal  or  other  objection 
is  apparent,  or  giving  vitality  to  the  original  sentence  by  proper 
action  thereon,  the  reviewing  authority  issued  an  order  declaring  the 
sentence  null  and  void  and  ordering  the  accused  released  from  con- 
finement and  restored  to  active  duty  with  his  company.  By  this 
action  a  soldier  properly  convicted  of  three  very  serious  offenses  com- 
mitted in  time  of  war  escaped  practically  all  punishment  therefor. 

SENTENCE  EOR  BUCCAL  COITUS:  Confinement  in  penitentiary. 

The  reviewing  officer  in  two  recent  cases  cited  a  Vermont  statute 
as  authority  for  confinement  in  the  penitentiary  of  two  soldiers  con- 
victed of  buccal  coitus.  The  forty-second  Article  of  War  provides 
that  "  except  for  desertion  in  time  of  war,  repeated  desertion  in  time 
of  peace,  and  mutiny  no  person  shall,  under  the  sentence  of  a  court- 
martial,  be  punished  by  confinement  in  a  penitentiary  unless  an  act 
or  omission  of  which  he  is  convicted  is  recognized  as  an  offense  of  a 
civil  nature  by  some  statutes  of  the  United  States  or  at  the  common 
law  as  the  same  exists  in  the  District  of  Columbia,  *  *  *."  This 
office  has  recently  held  that  buccal  coitus  under  the  clear  trend  of 
modern  authority  is  included  within  the  crime  of  sodomy  at  the 
common  law  as  the  same  exists  in  the  District  of  Columbia,  and  that 
this  is  sufficient  to  authorize  confinement  in  a  penitentiary  in  cases  of 
this  character. 

SENTENCE:   Dishonorable  discharge. 

A  soldier  who  had  been  in  the  service  less  than  a  month,  in  testi- 
fying in  his  own  behalf  upon  trial  for  larceny,  disclosed  his  desire 
to  escape  military  service  by  the  following  statement: 


110     DIGEST   OF   OPINIONS  JUDGE  ADVOCATE   GENERAL  OF  ARMY. 

"This  stuff  was  taken  more  through  soreness  and  agony  than  any- 
thing else.  It  wasn't  the  vahie  of  the  stuff,  because  it  could  be  bought 
a  whole  lot  cheaper,  I  expect,  than  it  was  got." 

The  court  practically  gratified  his  desire  by  imposing  a  sentence 
of  dishonorable  discharge  and  six  months'  confinement.  Encourage- 
ment to  commit  offenses  for  purpose  of  escaping  military  service  im- 
parted by  lenient  sentences,  especially  at  this  time,  is  bound  to  result 
detrimentally  to  the  service.  The  duty  of  courts-martial  to  impose 
sentences  possessing  sufficient  deterrent  effect  to  prevent  the  resort  by 
a  certain  class  of  men  to  the  commission  of  crime  as  a  means  of  get- 
ting out  of  the  Army  is  one  which  can  not  be  ignored. 

SENTENCE :   Punishment  for  desertion  committed  in  time  of  peace. 

In  the  case  of  a  soldier  tried  after  the  declaration  of  war  for  deser- 
tion on  January  12,  1917,  the  president  of  the  court,  in  advising  the 
accused  of  the  effects  of  his  plea  of  guilty  of  absence  without  leave, 
properly  stated  the  maximum  punishment  imposable  by  the  court 
thereunder  to  be  dishonorable  discharge,  total  forfeitures,  and  con- 
iinement  at  hard  labor  for  six  months,  which  is  the  limit  prescribed 
by  the  Executive  order  of  September  5,  1914,  in  effect  at  the  time 
the  accused  left  his  organization.  The  reviewing  authority,  in  a 
lengthy  order  acting  upon  the  case,  quoted  part  of  a  department 
bulletin  relative  to  the  abrogation  by  the  declaration  of  war  of  the 
limits-of-punishment  order  promulgated  by  the  President,  and  criti- 
cized the  court  and  the  judge  advocate  in  the  following  language: 

"  This  bulletin  was  published  in  order  that  notice  should  be  brought 
to  all  oiRcers  and  in  order  that  such  mistakes  as  was  made  in  this 
case  should  not  occur.  It  is  apparent  that  the  judge  advocate,  presi- 
dent, and  members  of  this  court  were  negligent  in  not  reading  bulle- 
tins published  for  their  instruction  and  guidance." 

This  view  of  the  reviewing  authority  was  erroneous.  The  limits 
of  punishment  prescribed  by  the  President  should  be  observed  by 
courts  and  reviewing  officers  with  respect  to  all  crimes  committed 
prior  to  the  declaration  of  war,  as  they  are  peace-time  and  not  war- 
time offenses,  even  though  the  trials  occur  in  time  of  war.  The  time 
of  commission  of  the  offense  and  not  the  time  of  trial  governs  the 
punishment  therefor. 

DECISIONS  OF  COURTS. 

JURISDICTION  OF   COURTS-MARTIAL   OVER   CIVILIANS   ON   ARMY 
TRANSPORT. 

The  opinion  of  the  United  States  District  Court,  Southern  Dis- 
trict of  New  York,  in  the  case  of  Charles  E.  Gerlach  is  as  follows: 

Augustus  N.  Hand,  District  Judge: 

Charles  E.  Gerlach,  an  employee  of  the  United  States  Shipping^ 
Board,  Avent  to  Europe  as  mate  on  the  steamship  McClellan^  a  ves- 
sel apparently  in  use  as  a  military  transport,  though  this  fact  was 
not  definitely  proved.  He  was  there  discharged  and  sent  back  on 
the  El  Occidente^  an  Army  transport,  to  New  York.  He  volun- 
teered to  stand  watch  and  for  several  days  did  this,  but  finally  re- 
fused to  continue.     For  this  disobedience  to  the  military  order  of 


DIGEST  OF*  OPINIONS  J'UDGE  ADVOCATE  GENERAL  OF  ARMY.      Ill 

an  Army  officer  he  was  tried  by  court-martial  and  sentenced  to  five 
years'  imprisonment. 

The  second  article  of  war  (R.  S.  1342,  as  amended  by  the  act 
of  Aug.  29,  1916,  39.  Stat,  573)  reads  as  follows: 

"The  following  persons  are  subject  to  the  Articles  of  War:  (e) 
All  retainers  to  the  camp  and  all  pei-sons  accompanying  or  serving 
with  the  armies  of  the  United  States  without '  the  territorial 
jurisdiction  of  the  United  States,  and  in  time  of  war  all  such 
retainers  and  persons  accompanying  or  serving  with  the  armies  of 
the  United  States  in  the  field,  both  within  and  without  the  terri- 
torial jurisdiction  of  the  United  States,  though  not  otherwise  sub- 
ject to  the  Articles  of  War." 

I  think  Gerlach  was  a  person  accompanying  the  Army  of  the 
United  States,  and  also  voluntarily  serving  with  the  armies  of  the 
United  States  at  the  time  he  disobeyed  the  order.  I  further  hold 
that  he  was  "  in  the  field  "  and  without  the  territorial  jurisdiction 
of  the  United  States  within  the  meaning  of  the  article.  The  words 
"  in  the  field  "  do  not  refer  to  land  only,  but  to  any  place,  whether 
on  land  or  water,  apart  from  permanent  cantonments  or  fortifica- 
tions, where  military  operations  are  being  conducted.  In  this  case 
he  was  on  an  Army  transport,  and  peril  from  submarines  existed 
when  he  refused  to  stand  watch.  The  captain  in  charge  of  the 
vessel  had,  in  my  opinion,  the  right  to  call  upon  all  persons  on 
board  to  protect  the  transport  in  any  way  that  seemed  best,  in  view 
of  the  danger.  The  section  of  the  Articles  of  War  subjecting  per- 
sons accompanying  armies  to  military  authority  not  only  enables 
military  officers  to  preserve  order  on  the  part  of  such  persons,  but 
also,  in  the  cases  that  it  covers,  to  call  on  them  for  assistance  and 
direct  their  action  while  they  'are  properly  in  the  field  of  military 
operations.  The  court-martial,  therefore,  had  exclusive  jurisdiction 
by  the  terms  of  the  Articles  of  War  over  this  man,  who  not  only  ac- 
companied the  Army  but  volunteered  to  serve,  unless  the  act  of  Con- 
gress which  adopted  the  Articles  of  War  is  unconstitutional. 

Section  8  of  Article  I  of  the  Constitution  is  the  source  of  au- 
thority for  the  Articles  of  War.  Congi-ess  is  thereby  given  poAver 
to  raise  and  support  armies,  to  make  rules  for  the  govemment  of 
land  and  naval  forces,  and  to  make  all  laws  which  shall  be  neces- 
sary for  carrying  into  execution  the  foregoing  powers  and  all  other 
powers  vested  by  the  Constitution  in  the  Government  of  the  United 
States.  This  is  in  aid  of  tTie  general  war  power,  and  ought  to  be 
given  a  broad  scope  in  order  to  give  the  fullest  protection  to  the 
Nation.  That  an  officer  should  be  able  to  call  upon  a  person  ac- 
companying the  military  forces,  who  had  volunteered  and,  indeed, 
asked  to  stand  watch,  as  Gerlach  had,  to  protect  a  transport  and  its 
occupants  in  time  of  danger  by  standing  watch,  is  certainly  within 
the  fair  object  of  the  Articles  of  War,  and  is  a  reasonable  power  for 
carrying  into  execution  the  government  of  military  forces.  The  act 
is  therefore,  in  my  opinion,  constitutional. 

The  writ  was  properly  dismissed  and  the  prisoner  remanded  to 
the  custody  of  the  military  authorities. 

December  10,  1917. 


DIGEST  OF  CERTAIN  OTHER  OPINIONS  OF  THE  JUDGE  ADVOCATE 
GENERAL  OF  THE  ARMY  PUBLISHED  IN  VOL.  1,  OPS.  J.  A.  G. 
1917. 

NATIONAL  DEFENSE  ACT:  National  Guard;  State  administrative  staff 
officers. 

The  Judge  Advocate  General  in  a  memorandum  for  the  Chief  of 
the  Militia  Bureau,  dated  February  1,  1917,  rendered  an  opinoin 
holding  that  the  national  defense  act  (39  Stat.  166)  requires  that 
the  organization  of  the  National  Guard  as  a  whole,  and  not  the 
National  Guard  in  each  State,  Territory,  and  the  District  of  Colum- 
bia, shall  be  the  same  as  that  prescribed  for  the  Eegular  Army ;  and 
that  consequently  such  State  administrative  staff  officers  as  are  ad- 
ditional to  those  authorized  by  the  national  defense  act,  in  so  far  as 
their  relations  to  the  general  government  are  concerned,  are  in  the 
same  status  as  adjutants  general  of  the  various  States,  that  is,  they 
are  designed  for  the  administrative  functions  of  the  State  and  do 
not  constitute  a  part  of  the  National  Guard  as  authorized  by  the 
national  defense  act.     This  opinion  is  adhered  to. 

Ops.  J.  A.  G.  58-210,  Apr.  2, 1917. 

ENLISTED  BESERVE  CORPS:  Railway  engineer  regiments,  organiza- 
tion of. 

Section  55  of  the  national  defense  act  (39  Stat.  166,  196),  which 
provides  for  the  ordering  to  active  service  of  the  Enlisted  Keserve 
Corps,  contains  no  authority  for  the  formation  of  organizations  and 
the  creation  of  officers  but .  contemplates  the  use  of  the  members 
thereof  with  existing  organizations  of  the  Regular  Army.  The 
authority  contained  in  sections  1  and  8  of  the  selective  draft  act 
(40  'Stat.  76,  81)  to  appoint  general  officers  and  line  and  staff  officers 
is  limited  to  officers  necessary  for  the  forces  thereby  created,  and  is 
not  applicable  to  brigades  composed  of  regiments  of  such  reserves. 
The  President  may,  however,  authorize  the  reenlistment  of  the  men 
already  enlisted  for  the  Engineer  Reserve  regiments  under  the  pro- 
vision contained  in  section  2  of  said  selective  draft  act,  for  the 
organization  of  special  and  technical  troops,  and  he  may  then  officer 
them,  organize  them  into  brigades,  and  appoint  brigade  commanders, 
under  the  authority  of  section  8  of  said  act. 

Ops.  J.  A.  G.  6-302.1,  May  26,  1917. 

ENLISTMENT:  Reenlistment  during  the  emergency. 

A  sergeant,  first  class,  Quartermaster  Corps,  may  not  be  permitted 
to  reenlist  for  general  recruiting  service  upon  what  would  normally 
be  the  termination  of  his  term  of  active  service  under  his  present  en- 
listment, June  29,  1917,  because  by  section  7  of  the  selective  draft 
act  of  May  18,  1917  (40  Stat.  76,  81),  all  enlistments  continue  in 
force  during  the  emergency  unless  sooner  discharged.  He  may, 
however,  be  transferred  to  the  general  recruiting  service  if  such 
action  is  deemed  advisable. 

Ops.  J.  A.  G.  28-240,  May  26,  1917. 
112 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.      113 

ENLISTMENT :   Qualifications  for  enlistment  in  National  Guard. 

The  qualifications  and  conditions  for  voluntary  enlistment  pre- 
scribed in  section  7  of  the  selective  draft  act  (40  Stat.  76,  81)  are 
not  applicable  to  enlistment  in  the  National  Guard  when  it  is  not  in 
the  Federal  service. 

Ops.  J.  A.  G.  58-232,  May  29, 1917. 

ARMY:  ENLISTED  RESERVE  CORPS:  Railway  engineer  organizations. 

The  Enlisted  Reserve  Corps  is  an  independent  corps  which  may  be 
assigned  to  duty  with  the  Regular  Army  or  other  component  part 
of  the  Army  of  the  United  States,  but  which  can  not  be  integrated 
therewith.  The  provisions  of  clause  3,  section  1,  selective  draft  act 
(40  Stat.  76),  for  the  appointment  of  officers  is  not  applicable 
thereto. 

Ops.  J.  A.  G.  302.1,  June  4, 1917. 

ENLISTED  RESERVE  CORPS:  Railway  engineer  regiments,  organiza- 
tion of. 

Since  officers  may  not  be  appointed  for  organization  of  members  of 
the  Enlisted  Reserve  Corps,  but  must,  under  section  55  of  the  na- 
tional defense  act  (39  Stat.  166,  195),  be  supplied  by  the  detail  of 
Regular  Army  officers  or  the  assignment  of  members  of  the  Officers' 
Reserve  Corps  it  is  necessary  to  reorganize  the  regiments  referred  to 
by  discharging  the  enlisted  men  from  the  Enlisted  Reserve  Corps 
and  reenlisting  them  as  technical  troops  under  the  authority  of  the 
proviso  of  section  2  of  the  act  of  May  18,  1917  (40  Stat.  76,  77).  For 
this  purpose  an  Executive  order  directing  the  organization  must  be 
issued  in  order  to  bring  into  being  the  organization  into  which  the 
men  now  included  in  the  provisional  organizations  are  to  be  em- 
l)odied. 

Ops.  J.  A.  G.  6-302.1,  June  5,  1917. 

ENLISTED  RESERVE  CORPS :  Railway  engineer  regiments,  appointment 
of  general  officers. 

General  officers  can  not  be  appointed  for  brigades  and  divisions 
consisting  of  regiments  composed  of  enlisted  reservists  organized 
under  section  55  of  the  national  defense  act  (39  Stat.  166,  195).  If, 
liowever,  such  organizations  of  enlisted  reservists  are  transformed 
by  reenlistment  into  organizations  of  special  and  technical  troops 
created  under  the  authority  of  the  proviso  of  section  2  of  the  selective 
draft  act,  such  general  officers  may  be  appointed  under  authority  of 
section  8  of  that  act. 

Ops.  J.  A.  G.  6-302.1,  June  7,  1917. 

EIELD  CLERKS,  QUARTERMASTER  CORPS:   Temporary  vacancy. 

In  the  case  of  a  field  clerk.  Quartermaster  Corps,  who  is  a  member 
of  the  Officers'  Reserve  Corps  and  is  ordered  as  such  to  active  duty, 
the  resulting  vacancy  in  the  field  clerkship  should  be  filled  by  a  tem- 
porary appointment. 

Ops.  J.  A.  G.  6-135,  June  7,  1917. 

•CONTRACTS:  Munitions  of  war;  Right  of  Secretary  of  War  to  order  a 
manufacturer  to  furnish  supplies  to  be  transferred  to  an  allied  gov- 
ernment. 

Where  a  manufacturing  company  doing  business  in  the  United 
States  and  under  contract  to  manufacture  necessary  munitions  of  war 
151738—20 8 


114     DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

for  the  British  Governiiicnt  refuses  to  renew  such  contract  except 
upon  terms  which  are  arbitrary  and  unfair,  the  Secretary  of  War, 
by  authority  of  section  120  of  the  national  defense  act  (39  Stat.  166, 
213),  may  order  such  contractor  to  furnish  such  munitions  to  the 
Government  of  the  United  States,  at  a  price  to  be  fixed  by  the  Secre- 
tary of  War  if  the  contractor  refuses  to  furnish  the  same  at  a  reas- 
onable price,  and  such  munitions  when  delivered  to  this  Government 
may  be  transferred  to  the  British  Government  under  an  arrangement 
for  reimbursement  by  the  British  Government  for  the  cost  thereof. 
Ops.  J.  A.  G.  99^301,  June  9,  1917. 

ARMY :   Issuance  of  new  commissions  to  ofl5.cers  of  former  Quartermaster's, 
Subsistence,  and  Pay  Departments. 

It  is  not  necessary  that  the  President  should  appoint  or  issue  new 
commissions  to  the  officers  of  the  Quartermaster's,  Subsistence,  and 
Pay  Departments  of  the  Army,  which  by  section  3  of  the  act  of 
August  24,  1912  (37  Stat.  569,  591),  were  -consolidated  into  the  Quar- 
termaster Corps  of  the  Army.  The  statute  expressly  provides  that 
the  officers  of  said  departments  as  consolidated  "  shall  hereafter  be 
known  as  officers  of  said  corps  and  by  the  titles  of  the  rank  held  by 
them  therein."  If  any  new  commissions  to  the  officers  so  transferred 
are  issued  under  the  statute,  no  nomination  or  confirmation  is  neces- 
sary. 

Ops.  J.  A.  G.  6-224,  June  13,  1917. 

ARMY:  Special  and  technical  troops;  Recruit  training  units. 

The  special  and  technical  troops  authorized  by  section  2  of  the  se- 
lective draft  act  are  in  addition  to  the  number  of  drafted  forces 
authorized  elsewhere  in  said  act.     (40  Stat.  76,  77.) 

The  recruit  training  units  authorized  by  section  1  of  said  act 
are  to  be  raised  by  draft  exclusively,  even  though  designed  to  main- 
tain, among  other  forces,  organizations  of  the  Eegular  Army  and 
drafted  National  Guard.  Nevertheless,  men  who  have  voluntarily 
enlisted  may,  by  administrative  action,  be  trained  in  ^those  units, 
although  they  can  not  legally  be  members  thereof.         *" 

Ops.  J.  A.  G.  6-200,  June  15,  1917. 

ARMY  CHAPLAINS:   Qualifications  for  appointment. 

The  amendment  of  section  15  of  the  national  defense  act  (39  Stat. 
166,  176)  contained  in  the  Army  appropriation  act  of  May  12,  1917 
(40  Stat.  40,  72),  as  to  the  appointment  of  chaplains  in  the  Army, 
became  effective  from  the  date  of  its  approval,  and  leaves  the  quali- 
fications for  appointment  to  that  office  as  prescribed  in  the  general 
law  (31  Stat.  748,  750).  Thus  a  person  over  40  years  of  age  and 
under  41,  who  was  nominated  but  not  appointed  prior  to  May  12, 
1917,  is  not  eligible  for  appointment  as  chaplain. 

Ops.  J.  A.  G.  64-233.3,  June  16,  1917. 

OFFICE:  Philippine  Scouts;  Eligibility  of  officers  of,  for  appointment  as 
second  lieutenants,  Regular  Army. 

Philippine  Scout  officers  to  be  eligible  for  appointment  as  j)ro- 
visional  second  lieutenants  of  the  Regular  Army  must  be  unmarried. 
Clause  2  of  the  second  paragraph  of  section  24  of  the  national-de- 
fense act  (39  Stat.  166,  182)  gives  to  officers  of  the  Philippine  Scouts 
the  same  privileges  and  subjects  them  to  the  same  requirements  as 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.      115 

enlisted  men  of  the  Army;  and  the  latter  are  specifically  required 
by  the  statute  to  be  unmarried  in  order  to  be  eligible  for  appoint- 
ment as  provisional  second  lieutenants.  The  amendment  of  said  sec- 
tion 24,  contained  in  the  act  of  May  12,  1917  (40  Stat.  40,  44),  does 
not  affect  this  question. 
Ops.  J.  A.  G.  64-212,  June  16, 1917. 

ABMY:   Corps  of  interpreters,  authority  for  organization  of. 

A  proposed  corps  of  interpreters,  to  consist  of  a  commissioned 
personnel  numbering  100  and  an  enlisted  personnel  numbering  72, 
may  not  be  organized  as  "  special  and  technical  troops  "  under  sec- 
tion 2  of  the  selective  draft  act  (40  Stat.  76,  77).  They  may,  how- 
ever, be  included  in  headquarters  organizations  under  authority  of 
section  3  of  the  national  defense  act  (39  Stat.  166). 

Ops.  J.  A.  G.  6-200,  June  20,  1917. 

PAY  AND  ALLOWANCES:  Right  to  extra-duty  pay;  Distinction  between 
extra  duty  and  special  duty. 

Since  the  right  to  extra-duty  pay  is  given  by  statute  and  can 
therefore  be  taken  away  only  by  legislation,  instructions  of  the  Sec- 
retary of  War  that  no  extra-duty  pay  will  be  allowed  after  the 
approval  of  any  act  giving  increased  pay  can  not  operate  to  deprive 
enlisted  men  who  are  actually  employed  in  extra  duty  in  pursuance 
of  competent  orders  of  the  right  to  receive  extra  pay  therefor. 

Ops.  J.  A.  G.  72-230,  June  20,  1917. 

SELECTIVE-DRAFT  ACT:   Applicable  to  Porto  Rico  and  Poto  Ricans. 

The  selective  draft  act  (40  Stat.  76)  applies  to  Porto  Rico.  All 
citizens  and  natives  of  Porto  Rico  who  had  not  declared  their  inten- 
tion not  to  become  citizens  of  the  United  States  on  or  before  May  18, 
1917,  are  subject  to  registration  and  draft. 

Ops.  J.  A.  G.  6-250,  June  22,  1917. 

ARMY:   Personal  aids  for  major  generals  and  brigadier  generals. 

The  Secretary  of  War  can  not  authorize  a  major  general  to  have, 
during  the  period  of  the  emergency,  one  or  more  majors  as  personal 
aids,  not  to  exceed  three,  in  lieu  of  a  like  number  of  captains  or  lieu- 
tenants ;  nor  can  he  authorize  a  brigadier  general  to  have  one  or  more 
captains  as  personal  aids.  Sections  11  and  14  of  the  selective  draft 
act  (40  Stat.  76,  82,  83),  do  not  suspend  the  restrictions  contained  in 
section  1098,  Revised  Statutes. 

Ops.  J.  A.  G.  6-200,  June  26,  1917. 

SELECTIVE  DRAFT  ACT:  Citizenship;  Expatriation  after  enactment  of 
draft  act. 

United  States  citizenship  is  acquired  by  the  mere  fact  of  birth 
within  the  United  States  of  a  person  owing  allegiance,  temporary  or 
permanent,  to  the  United  States.  Aliens  who  have  acquired  Ameri- 
can citizenship,  in  the  event  of  their  return  to  the  country  of  origin 
and  reacquisition  of  their  original  citizenship,  either  by  choice  or  by 
recovery,  will  simply  lose  American  citizenship  by  one  of  these  two 
facts.  Any  American  citizen,  whether  native  born  or  naturalized, 
who  acquired  foreign  citizenship  prior  to  the  passage  of  the  selective 
draft  act  (40  Stat.  76)  would  not  fall  within  the  terms  of  the  act; 


116     DIGEST   OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

but  expatriation  after  the  passage  of  the  act  would  not  exempt  a  per- 
son from  his  obligation  to  render  involuntary  service  thereunder. 
Ops.  J.  A.  G.  13-210,  June  26,  1917. 

ARMY:   Increase  in  enlisted  personnel  of  Regular  Army. 

Under  authority  of  section  1  of  the  selective  draft  act  (40  Stat. 
76),  the  President  can  now  increase  the  enlisted  personnel  of  the  line 
of  the  Army  to  the  extent  necessary  to  organize  all  line  organizations 
to  meet  the  essential  requirements  of  the  existing  emergency. 

Ops.  J.  A.  G.  6-200,  June  28,  1917. 

OFFICE:  Age  requirements  of  enlisted  men,  candidates  for  appointment 
as  second  lieutenants. 

To  be  eligible  for  appointment  to  vacancies  in  the  grade  of  second 
lieutenant  created  or  caused  by  increases  due  to  the  national  defense 
act  (39  Stat.  166),  enlisted  men  of  the  Army  must  be  between  the 
ages  of  21  and  34  years,  while  for  appointment  to  other  vacancies 
there  is  no  statutorv  minimum  age  limit  for  such  candidates. 

Ops.  J.  A.  G.  64^212,  June  28,  1917. 

ARMY:   Burial  expenses  of  cadets. 

There  is  no  appropriation  available  for  the  payment  of  burial  ex- 
penses of  cadets  of  the  United  States  Military  Academy. 
Ops.  J.  A.  G.  6-131,  June  30,  1917. 

PANAMA  CANAL  ZONE :   Transportation  for  troops  on  west  side  of  Canal 
Zone. 

In  order  to  furnish  necessary  transportation  to  troops  isolated  on 
the  west  side  of  the  Panama  Canal,  it  is  permissible  for  the  Quarter- 
master Departm.ent  either  to  lease  from  the  Panama  Railroad  the 
necessary  tracks  and  equipment  and  operate  it  as  an  Army  plant,  or 
to  charter  the  west  side  system  of  the  Panama  Railroad  as  a  going 
concern. 

Ops.  J.  A.  G.  92-523.2,  June  30,  1917. 

ARMY:   Enlistment;    Voluntary    enlistment    in    Regular    Army    and    Na- 
tional Guard  after  draft  is  resorted  to. 

Under  section  2  of  the  selective  draft  act  (40  Stat.  76,  77)  two 
methods  are  provided  for  raising  and  maintaining  the  Regular  Army 
and  National  Guard,  viz,  voluntary  enlistment  and  draft.  They 
may  be  used  concurrently.  Men  voluntarily  enlisted  for  the  Regular 
Army  or  National  Guard  may  be  attached  to  units  raised  by  draft 
under  section  1  of  said  act. 

Ops.  J.  A.  G.  34-050,  July  2,  1917. 

OFFICE:   Selective  Draft  Act;  Time  of  appointing  officers  for  service  in 
National  Army. 

The  selective  draft  act  (40  Stat.  76)  imposes  no  restrictions  as  to 
the  time  when  appointments  of  officers  of  the  National  Army  are  to 
be  made.  Officers  for  units  to  be  organized  may  be  appointed  before 
completion  of  the  organization  thereof. 

Ops.  J.  A.  G.  6-200,  July  3,  1917. 

OFFICERS'  RESERVE  CORPS :  Public  and  private  mounts. 

In  view  of  the  temporary  status  with  respect  to  active  duty  of 
reserve  officers,  the  Secretary  of  War  may  prescribe  that  they  will 
be  furnished  with  the  necessary  public  mounts  save  in  the  exceptional 


DIGEST  OF  OPINION C3  ifUDaE  ADVOCATE  GENEKAL  OF  ARMY.      117 

cases  where  the  interests  of  the  Government  require  them  to  provide 
themselves  with  mounts  under  the  terms  of  the  act  of  May  11,  1908. 
(35  Stat.  106,  108.) 
Ops.  J.  A.  G.  94-011,  July  3,  1917. 

CONTRACTS:  Unauthorized  contracts  by  National  Guard  officers  in  Fed- 
eral service  for  hire  and  purchase  of  horses  and  mules. 

Contracts  made  by  National  Guard  officers  without  authority  from 
the  War  Department  for  the  hire  and  purchase  of  horses  and  mules 
for  use  in  Federal  service  are  not  binding  upon  the  United  States. 
The  War  Department  may,  however,  pay  a  reasonable  compensation 
for  the  hire  of  such  draft  animals  used  by  the  National  Guard  in  the 
Federal  service  as  were  actually  necessary  under  the  circumstances. 

Ops.  J.  A.  G.  58-^301,  July  5, 1917. 
MESS  SERGEANTS :  Detail  of  enlisted  men. 

Enlisted  men  of  any  grade  may  be  detailed  as  mess  sergeants,  but 
such  details  from  the  grade  of  sergeant,  first  class,  Medical  Depart- 
ment, may  be  made  only  by  special  authority  of  the  Surgeon  General 
in  each  individual  case. 

Ops.  J.  A.  G.  72-200,  July  7, 1917. 

MILITIA:  Pay  and  allowances;  Retired  enlisted  man  commissioned  in 
federalized  National  Guard. 

A  retired  enlisted  man  of  the  Regular  Army  is  eligible  as  an  officer 
of  a  National  Guard  regiment  to  be  mustered  into  the  Federal  service 
without  being  first  discharged  as  a  retired  enlisted  man.  While  in 
receipt  of  pay  as  such  National  Guard  officer  his  pay  as  a  retired  en- 
listed man  will  be  discontinued.  Upon  discharge  from  Federal  serv- 
ice as  a  National  Guard  officer  his  right  to  retired  pay  will  be  revived. 

Ops.  J.  A.  G.  88-931,  July  7,  1917. 

OFFICERS'  RESERVE  CORPS:  Eligibility  of  military  storekeeper  and 
second  lieutenants,  Quartermaster  Corps,  for  higher  grades  in  Reserve 
Corps. 

The  military  storekeeper  and  second  lieutenants.  Quartermaster 
Corps,  can  not  be  given  higher  rank  in  the  Officers'  Reserve  Corps, 
Quartermaster  section,  but  they  are  eligible  for  temporary  commis- 
sions in  the  regular  forces. 

Ops.  J.  A.  G.  82-120,  July  7, 1917. 

APPROPRIATIONS:  Vocational  training  at  Disciplinary  Barracks. 

Appropriations  for  the  initiation  and  maintenance  of  vocational 
training  in  the  Army  are  applicable  to  the  establishment  and  main- 
tenance of  such  training  in  the  disciplinary  organizations  at  the  Dis- 
ciplinary Barracks  at  Fort  Leavenworth,  Kans. 

Ops.  J.  A.  G.  56-129.4,  July  10,  1917. 

WAR:  Censorship  of  cable  dispatches. 

The  President  may,  in  the  absence  of  legislation  by  Congress  on  the 
subject,  prohibit  the  operation  of  any  cable  connection  with  a  foreign 
country  if  in  his  judgment  such  action  is  necessary  to  the  safety  of 
our  troops  or  the  proper  concealment  of  military  plans  and  opera- 
tions; or  he  may  permit  their  continued  operation  under  conditions 
that  will  prevent  such  operation  from  being  hurtful  to  the  interests 
of  the  Government.  To  this  end  the  Secretary  of  War,  acting  for 
the  President,  may  establish  a  censorship  over  cable  dispatches 
arriving  in  this  country  or  leaving  this  country  as  a  condition  to 


118     DIGEST   OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

permitting  the  continued  operation  of  the  cable  connections  with 
foreign  countries. 
Ops.  J.  A.  G.  99-270,  July  10,  1917. 

ARMY  NURSES :   Commutation  of  rations  of  nurses  on  duty  in  Trance. 

Where  nurses  are  on  duty  in  France  at  hospitals  in  which  the  regu- 
lar hospital  mess  system  is  not  used  and  the  nurses  do  not  have  the 
benefit  of  the  economies  of  such  system,  they  may  be  regarded  as  on 
detached  duty  within  the  meaning  of  Army  Regulations  1223  and  be 
given  commutation  of  rations  at  the  rate  of  $1  per  day.  But  if  sub- 
sisted in  a  regular  hospital  mess  operated  under  the  officer  in  com- 
mand of  the  hospital,  the  only  rate  of  commutation  allowable  is 
that  fixed  by  the  Army  appropriation  act  (40  Stat.  40,  50). 

Ops.  J.  A.  G.  6-227.2,  July  13,  1917. 

CIVILIAN    EMPLOYEES:   Pay;    Riglit    of    employees    of   Army   Medical 
Supply  Depot  to  extra  pay  for  overtime  work. 

Permanent  employees  of  the  Army  Medical  Supply  Depot,  who 
are  paid  on  an  annual  basis,  are  not  entitled  to  extra  pay  for  over- 
time work. 

Ops.  J.  A.  G.  16-402,  July  13,  1917. 

CONFINEMENT:   Date  when  sentence  begins  to  run. 

A  sentence  of  confinement  begins  to  run  on  the  date  of  the  order 
publishing  the  case,  although  the  reviewing  authority,  in  excess  of 
his  authority,  sought  to  suspend  the  sentence. 

Ops.  J.  A.  G.  30-823.1,  July  13,  1917. 

CONTRACTS:   Settlement  of  claim  for  unliquidated  damages;  disposition 
of  proceeds  of  sales  of  old  materials. 

Where  a  contract  makes  no  provision  for  determining  disputes 
arising  thereunder,  a  claim  for  breach  thereof  is  such  an  unliqui- 
dated claim  as  can  not  be  compromised  or  settled  by  executive  officers 
of  the  Government.  Nor  can  the  proceeds  of  a  sale  of  old  materials 
be  used  to  offset  a  claim  growing  out  of  a  separate  contract,  for  such 
proceeds  are  required  to  be  deposited  in  the  Treasury  as  "Miscel- 
laneous receipts." 

Ops.  J.  A.  G.  76-700,  July  17,  1917. 

PUBLIC  PROPERTY :   Sale  of  private  mount  by  oflScer  to  Government. 

Army  regulation  1095  authorizes  the  purchase  by  the  Govern- 
ment from  a  mounted  officer  of  the  Army  of  a  mount  theretofore  pur- 
chased by  the  officer  from  the  Government,  even  though  such  officer 
is  not  relieved  from  mounted  duty  or  ordered  to  duty  beyond  seas  or 
required  to  make  a  change  of  station  involving  an  expense  exceeding 
$100  for  the  transportation  of  such  mount. 

Ops.  J.  A.  G.  94-011,  July  18,  1917. 

PUBLIC  HEALTH  SERVICE:   Right  to  purchase  uniform  clothing   and 
quartermaster  supplies. 

Army  regulation  1174  (C.  A.  E.  No.  58,  June  6,  1917)  does  not 
authorize  the  sale  of  uniform  clothing  and  other  quartermaster  sup- 
plies to  commissioned  officers  and  employees  of  the  Public  Health 
Service,  which  was  made  a  part  of  the  military  forces  of  the  United 
States  by  the  Executive  order  of  April  3,  1917. 

Ops.  J.  A.  G.  1-4-122.5,  July  19,  1917. 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.      119 

CONTRACTS:  Right  to  modify  or  cancel  Government  contract  because 
of  hardship  on  contractor. 

The  fact  that  the  cost  of  raw  materials  has  for  unforeseen  reasons 
so  advanced  as  to  make  the  contract  price  for  ether  agreed  to  be  fur- 
nished the  Government  so  inadequate  as  to  compel  the  contractor  to 
operate  at  a  loss  furnishes  no  legal  justification  for  a  modification  or 
cancellation  of  the  contract. 

Ops.  J.  A.  G.  7()-()10,  July  23,  1917. 

OATHS:  Right  of  assistant  to  department  adjutant  to  administer  oaths 
for  military  purposes. 

An  assistant  to  a  department  adjutant  is  not  an  "  adjutant  of  any 
command  "  within  the  terms  of  the  one  hundred  and  fourteenth  ar- 
ticle of  war  and  has  no  authority  to  administer  an  oath  for  purposes 
of  military  administration. 

Ops.  J.  A.  G.  64-219,  July  24, 1917. 

RANK:  Relative  rank  of  oflScers  in  Regular  Army,  National  Army,  Na- 
tional Guard,  and  Officers'  Reserve  Corps. 

OFFICE:  Eligibility  of  officers  in  Regular  Army  and  National  Guard  for 
commissions  in  Officers'  Reserve  Corps. 

Officers  of  the  Officers'  Reserve  Corps,  when  ordered  to  active  duty, 
take  rank  as  "  officers  of  forces  drafted  or  called  into  service  of  the 
United  States  "  under  the  one  hundred  and  nineteenth  article  of  war. 
Officers  of  the  Regular  Army  commissioned  in  a  higher  grade  of  the 
National  Army  are  entitled  to  rank  as  if  their  commissions  in  the 
National  Army  Avere  commissions  in  the  Regular  Army. 

An  officer  of  the  Regular  Army  or  of  the  National  Guard  on  the 
active  list  may  not  be  appointed  to  the  Officers'  Reserve  Corps. 

Ops.  J.  A.  G.  82-200,  July  25,  1917. 

PAY  AND  ALLOWANCES:  Right  to  pay  of  soldier  injured  while  con- 
fined in  hospital  on  account  of  disease  resulting  from  his  own  miscon- 
duct. 

Where  a  soldier,  absent  from  duty  in  a  hospital  on  account  of  dis- 
ease resulting  from  his  own  misconduct,  receives  an  injury  in  the 
course  of  medical  treatment  properly  and  skillfully  administered  and 
is  absent  from  duty  for  a  further  period  on  account  of  such  injury, 
he  is  entitled  to  receive  no  pay  for  such  further  period.  If  the  injury 
is  due  to  improper  or  unskillful  treatment,  he  is  entitled  to  pay  for 
the  period  of  absence  occasioned  thereby. 

Ops.  J.  A.  G.  72-210,  July  26,  1917. 

RAILROADS:  Compensation  of  land-grant  railroad  for  transporting 
troops. 

A  railroad  receiving  a  land  grant  under  the  act  of  July  28,  1866 
(14  Stat.  338),  is  required  to  transport  property  and  troops  of  the 
United  States  at  the  cost  charge  and  expense  of  the  company  or  cor- 
poration owning  or  operating  it  and  is  not  entitled  to  compensation 
therefor  under  the  Army  appropriation  act  of  May  12,  1917.  (40 
Stat.  40,54.) 

Ops.  J.  A.  G.  94-061,  July  27, 1917. 

MILITIA:  EjBfect  of  draft  of  National  Guard  organization  into  Federal 
service  on  prior  offenses  and  existing  courts-martial. 

Members  of  the  National  Guard  in  the  Federal  service  on  August  5, 
1917,  and  drafted  as  of  that  date  continue  their  status  as  persons  in 


120     DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

the  military  service,  and  jurisdiction  over  offenses  committed  by  them 
prior  to  August  5,  1917,  continues.    General  courts-martial  existing^ 
in  the  National  Guard  on  August  5,  1917,  ceased  to  exist  at  the  time 
of  the  draft,  and  have  no  authority  thereafter  to  function. 
Ops.  J.  A.  G.  28-711,  July  30,  1917. 

ARMY  BANDS:  Rendering  gratuitous  service;  Competition  with  civilian, 
bands. 

The  giving  of  a  public  concert  by  a  military  band  by  direction  of 
its  commanding  officer,  for  which  the  members  of  the  organization 
receive  no  compensation  either  as  individuals  or  as  an  organization, 
does  not  constitute  an  interference  with  the  customary  and  regular 
engagement  of  local  civilians  within  the  inhibition  of  section  35  of 
the  national  defense  act  (39  Stat.  166,  188). 

Ops.  J.  A.  G.  8^21,  Aug.  1,  1917. 

CONTRACTS:  Designation  of  newspapers  for  advertising. 

The  requirements  of  section  3828,  Revised  Statutes,  are  complied 
with  by  the  Secretary  of  War's  granting  general  authority  in  writing 
to  a  subordinate  officer  to  insert  advertisements  in  newspapers  to  be 
selected  by  the  latter  in  a  given  locality,  provided  that  the  subordi- 
nate officer  gives  specific  orders  in  writing  to  each  of  such  newspapers 
for  the  particular  advertisements.  The  granting  of  such  authority 
will  constitute  a  waiver  of  the  requirements  of  Army  Regulations 
499  so  far  as  the  same  are  inconsistent  herewith. 

Ops.  J.  A.  G.  76-110,  Aug.  1, 1917. 

APPROPRIATIONS :   Rental  of  building  in  Washington,  D.  C,  for  use  of 
Army  Medical  School. 

The  item  for  contingent  expenses  under  the  War  Department  ap- 
pearing in  the  urgent  deficiency  act  of  June  15,  1917  (40  Stat.  182), 
is  available  only  for  expenses  of  the  War  Department  as  an  executive 
department  and  not  for  expenses  of  the  Military  Establishment. 
Consequently,  it  can  not  be  used  for  the  rental  of  a  building  for  a 
service  school  such  as  the  Army  Medical  School.  The  use  of  appro- 
priations pertaining  to  the  Quartermaster  Corps  for  such  purpose, 
if  the  building  is  located  in  Washington,  is  forbidden  by  the  act  of 
June  22,  1874  (18  Stat.  133,  144). 

Ops.  J.  A.  G.  5-111,  Aug.  3, 1917. 

OFFICE:   Whether  election  of  National  Guard  officer  to  advanced  grade 
is  an  appointment  or  a  promotion. 

An  officer  of  the  Regular  Army,  where  promotions  are  required  by 
statute  to  be  made  according  to  seniority,  subject  to  examination,  is 
entitled  to  the  pay  of  the  advanced  grade  from  the  date  of  the  va- 
cancy to  which  he  is  promoted.  Where  promotions  are  not  made  ac- 
cording to  seniority,  each  promotion  is  regarded  as  a  new  appoint- 
ment ;  and  the  officer  thus  promoted  is  entitled  to  the  pay  of  the  ad- 
vanced grade  from  the  date  of  acceptance  of  his  commission  therein. 
An  officer  of  the  National  Guard  elected  to  an  advanced  grade  must 
be  regarded  as  appointed  rather  than  as  promoted  by  seniority. 

Ops.  J.  A.  G.  58-700,  Aug.  4,  1917. 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.      121 

CONTRACTS:  Advance  payment;  Payment  for  goods  purchased  f.  o.  b. 
shipping  point  after  delivery  there  but  before  their  receipt  at  desti- 
nation. 

Where  goods  are  bought  f.  o.  b.  shipping  point,  payment  for  them 
after  delivery  f.  o.  b.  shipping  point  and  before  their  receipt  at  point 
of  destination  is  not  an  advance  payment  within  the  inhibition  of 
Kevised  Statutes  3648. 

Ops.  J.  A.  G.  76-700,  Aug.  6,  1917. 

ARMY:  Drafted  forces  not  part  of  the  Regular  Army. 

The  forces  brought  into  the  Army  of  the  United  States  by  draft 
are  not  part  of  the  Regular  Army.  The  Eegular  Army  is  that  force 
raised  and  supported  by  Congress,  maintained  in  peace  and  war,  and 
having  a  continuous  and  permanent  existence.  It  is,  of  course,  a 
component  part  of  the  Army  of  the  United  States,  but  is  separate 
and  distinct  from  the  drafted  forces.  Hence,  legislation  which  pro- 
hibits members  of  the  Regular  Army  from  voting  does  not  affect 
members  of  other  component  forces  of  the  Army  of  the  United  States. 

Ops.  J.  A.  G.  86-210,  Aug.  7,  1917. 

APPROPRIATIONS:  Rental  of  building  in  Manila  to  house  soldiers  on 
leave. 

The  appropriation  for  "  Barracks  and  quarters  "  (39  Stat.  619,  638) 
is  limited  to  the  provision  of  shelter  and  protection  for  officers,  and 
enlisted  men  of  the  Army  at  military  posts  and  stations,  and  can  not 
properly  be  applied  to  the  lease  of  a  building  to  supply  men  with 
accommodations  while  on  leave  and  away  from  their  stations.  Ar- 
rangements for  such  temporary  accommodations  might  be  made  by 
the  post  exchange. 

Ops.  J.  A.  G.  40-100,  Aug.  8,  1917. 

PAY  AND  ALLOWANCES :  Forfeiture  of  right  to  reservist's  pay  by  fail- 
ure to  report  address,  etc. 

Answering  to  the  call  and  reporting  to  active  service  by  a  member 
of  the  Regular  Army  Reserve  does  not  remove  any  bar  that  may  have 
previously  existed  against  the  receipt  of  reservist's  pay  by  him  be- 
cause, of  his  failure  to  report  his  address  and  to  present  himself  to 
the  postmaster  or  to  an  Army  or  Navy  officer  with  the  request  that 
such  postmaster  or  officer  sign  a  statement  that  he  is  apparently  in 
good  physical  condition. 

Ops.  J.  A.  G.  6-300,  Aug.  8,  1917. 

ARMY:   Grade  of  mess  sergeant  for  Engineer  band. 

By  the  national  defense  act  (39  Stat.  166)  the  grade  of  mess  ser- 
geant is  created  for  companies  of  the  Engineer  Corps  but  none  is  pro- 
vided for  the  Engineer  band.  Accordingly,  pursuant  to  rulings  of 
the  Comptroller  (22  Comp.  Dec.  718;  81  MS.  Comp.  Dec.  164),  since 
there  is  no  statutory  provision  for  the  grade  of  mess  sergeant  in  the 
Engineer  band,  the  presumption  is  that  Congi-ess  did  not  intend  the 
band  to  have  a  mess  sergeant,  and  it  is  not  lawful  to  detail  a  mess 
sergeant  to  the  band  under  the  provisions  of  Army  Regulations  1346. 

Ops.  J.  A.  G.  72-200,  Aug.  10,  1917. 


122     DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

CONTBACTS:  Validity  of  option  for  renewal  by  Government  of  lease  of 
cantonment  sites  from  year  to  year. 

Covenants  giving  the  Government  options  for  renewal  from  year 
to  year  contained  in  leases  of  cantonment  sites  are  perfectly  valid. 
They  give  the  Government  no  legal  interest  in  the  premises  beyond 
the  term  of  the  lease,  though  they  do  give  it  the  right  to  enforce  the 
covenants  of  the  landlord  in  equitv. 

Ops.  J.  A.  G.  80-710,  Aug.  13,  1917. 

MILITIA  BUREAU:  Status  after  National  Guard  is  drafted  into  Federal 
service. 

The  Militia  Bureau  is  to  be  maintained  as  a  separate  bureau  with 
a  general  officer  as  its  head  during  the  present  war,  notwithstanding 
the  draft  of  the  National  Guard.  Such  general  officer  may  be  de- 
tached and  placed  in  command  of  troops.  Administrative  arrange- 
ments may  be  made  for  access  to  the  records  of  the  Militia  Bureau 
by  The  Adjutant  General  and  for  the  employment  of  clerks  of  the 
bureau  in  the  office  of  The  Adjutant  General. 

Ops.  J.  A.  G.  6-212,  Aug.  15,  1917. 

PAY  AND  ALLOWANCES:  Absence;   Failure  of  soldier  to   report  to   or- 
ganization after  discharge  from  hospital. 

An  enlisted  man  of  a  militia  organization  called  into  Federal  serv- 
ice while  an  inmate  of  a  division  hospital,  suffering  from  rheumatism, 
was  sent  by  order  of  the  commander  of  such  hospital  to  a  civil  lios- 

Eital  for  treatment.  He  was  subsequently  discharged  from  the  latter 
ospital,  but  never  rejoined  his  organization  which  continued  in 
Federal  service  for  some  months  and  was  then  mustered  out.  Held, 
that  the  soldier  must  be  considered  as  having  been  absent  without 
leave  from  the  time  of  his  discharge  from  the  hospital  until  the 
muster  out  of  his  organization.  Hence  he  is  not  entitled  to  receive 
pav  or  allowances  for  such  period. 
Ops.  J.  A.  G.  58-700,  Aug.  15,  1917. 

BETIBEMENT :  Pay  and  allowances;  Assignment  of  retired  of&cer  to  ac- 
tive duty. 

A  retired  officer,  assigned  to  active  duty  and  ordered  to  report  for 
assignment  to  duty,  is  entitled  to  full  pay  from  the  date  he  enters 
upon  such  duty,  and  not  from  the  date  of  notice  to  him  of  the  original 
order  of  assignment.  It  is  immaterial  that  the  War  Department 
order  placing  this  officer  on  active  duty  did  not  expressly  refer  to 
section  24  of  the  national  defense  act  (39  Stat.  166,  182)  and  did 
not  purport  to  be  by  direction  of  the  President,  since  it  was  in 
fact  issued  as  a  war  measure  "for  the  purpose  of  relieving  an  officer 
still  on  the  active  list  for  duty  in  the  field  " ;  and  since,  being  issued 
by  the  Secretary  of  War,  it  must  be  assumed  that  the  order  was  in 
fact  the  order  of  the  President,  although  the  order  does  not  specifi- 
cally so  state. 

Ops.  J.  A.  G.  88-630,  Aug.  16, 1917. 

APPBOPBIATIONS :   Telegrams    sent    by    Civil    Service    Commission    for 
benefit  of  Ordnance  Department. 

Bills  for  telegrams  sent  out  by  the  Civil  Service  Commission  di- 
recting in  urgent  cases  eligibles  for  positions  in  the  Ordnance  De- 
partment to  report  for  service,  are  not  payable  from  the  authoriza- 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.      123 

tion  under  the  provision  in  the  Army  appropriation  act  (40  Stat.  40, 
52)  entitled:  "Incidental  expenses,  Quartermaster  Corps,"  since  that 
provision  is  limited  to  "  cost  of  telegrams  or  official  business  received 
and  sent  by  officers  of  the  Army." 
Ops.  J.  A.  G.  22-011.1,  Aug.  20,  1917. 

PUBLIC  PROPERTY :  Rights  of  Government  to  make  regulations  respect- 
ing vehicles  suspected  of  carrying  liquor  into  Gettysburg  National  Park. 

The  United  States  has  jurisdiction  to  issue  traffic  regulations  for 
automobiles  using  that  part  of  the  Emmitsburg  Koad  which  extends 
from  the  crossing  of  the  Wheatfield  Road  southwestward  to  the 
boundary  of  the  park.  The  local  officers  of  the  Gettysburg  National 
Park  have  authority  to  exclude  therefrom  vehicles  suspected  of  carry- 
ing intoxicating  liquors,  if  the  persons  in  charge  thereof  refuse  to 
allow  them  to  be  inspected. 

Ops.  J.  A.  G.  80^33,  Aug.  21,  1917. 

PAY  AND  ALLOWANCES :   Extra-duty  pay  of  Corregidor  prison  guards. 

The  members  of  the  battalion  of  Philippine  Scouts  kept  perma- 
nently at  Corregidor  as  prison  guards  may  be  granted  extra-duty 
pay  in  order  to  make  this  onerous  work  attractive  and  to  keep  the 
companies  recruited  up  to  full  strength.  Congress  has  authorized 
the  Secretary  of  War  to  fix  the  pay  of  the  Philippine  Scouts  at  rates 
not  to  exceed  those  authorized  for  the  Eegular  Army.  Enlisted  men 
of  the  Regular  Army  assigned  to  duty  as  prison  guards  receive 
extra-duty  pay  by  authority  of  Congress. 

Ops  J.  A.  G.  6-250,  Aug.  22,  1917. 

OFFICE:   Eligibility  for   promotion  of   oflacers   holding   provisional   com- 
mission. 

So  far  as  transfer  and  promotion  are  concerned,  an  officer  hold- 
ing a  provisional  commission  in  the  Regukir  Army  must  be  regarded 
exactly  as  if  his  commission  were  permanent. 

Ops.  J.  A.  G.  64r-221,  Aug.  27,  1917. 

APPROPRIATIONS:   Expenses  of  reporters  and  witnesses  at  examining 
boards  for  promotion  and  efficiency  boards. 

Boards  for  the  examination  of  officers  for  promotion,  and  effi- 
ciency boards  are  authorized  by  law.  Where  the  War  Department 
deems  the  services  of  reporters  and  the  presence  of  civilian  wit- 
nesses necessary  for  the  proper  conduct  of  the  business  of  such 
boards,  the  expenses  thereof  may  be  paid  from  the  appropriation 
(40  Stat.  40,  53),  "Incidental  expenses.  Quartermaster  Corps." 

Ops.  J.  A.  G.  5-244,  Aug.  28,  1917. 

PAY  AND  ALLOWANCES:  Procedure  on  payment  of  pay  due  insane  offi- 
cers and  enlisted  men. 

There  is  no  practicable  wav  of  covering  the  payment  of  pay  due 
insane  officers  and  soldiers  except  by  resorting  to  legal  proceedings 
for  the  appointment  of  a  guardian  or  committee  for  the  insane  per- 
son. The  party  being  incompetent  to  receive  and  receipt  for  his 
own  pay,  if  payment  is  to  be  made,  it  is  necessary  that  it  be  made 
to  some  one  who  has  the  legal  authority  to  act  on  his  behalf:  and 


124     DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY. 

the  only  one  who  would  have  such  authority  would  be  a  committee, 
or  guardian  appointed  pursuant  to  law. 
Ops.  J.  A.  G.  44r-010,  Aug.  28,  1917. 

EIGHT-HOUR  LAW:   Contracts  for  ordnance  and  ordnance  supplies. 

Since  the  Ordnance  Department  manufactures  but  a  very  small  frac- 
tion of  its  total  needs  of  horse  equipment  and  artillery  harness,  and 
since  other  bureaus  procure  these  classes  of  articles  entirely  by  contract^ 
these  articles  are  not,  within  the  operation  of  the  eight-hour  act  of 
June  19, 1912  (37  Stat.  137),  but  fall  within  the  exception  therein  con- 
tained as  to  classes  of  articles  which  may  be  purchased  in  the  open 
market.  Hence,  under  existing  conditions,  contracts  for  this  class 
of  articles  are  not  required  to  contain  the  eight-hour  provision ;  and,^ 
further,  not  being  within  the  eight-hour  statute,  they  are  not  within 
the  provision  of  the  naval  appropriation  act  approved  March  4,  1917 
(39  Stat.  1168, 1192),  requiring  extra  pay  for  overtime  work. 

Ops.  J.  A.  G.  32-313,  Aug.  30,  1917. 

EIGHT-HOUR  LAW :   Ohio  River  dam. 

The  work  of  building  Dam  No.  31,  Ohio  Eiver,  may  properly  be 
regarded  as  within  the  terms  of  the  Executive.order  of  April  28, 1917^ 
suspending  the  application  of  the  eight-hour  law  with  respect  to  con- 
tracts having  relation  to  work  for  national  defense.  It  is  recom- 
mended that  it  be  so  regarded. 

Ops.  J.  A.  G.  32-212,  Aug.  30,  1917. 

OFFICE:  Effect  of  acceptance  of  commission  in  one  of  the  component 
forces  of  the  Army  of  the  United  States  upon  a  commission  held  in 
another  force  of  said  Army. 

Except  in  the  cases  of  officers  of  the  Regular  Army  whose  rights 
are  protected  by  statute,  an  officer  in  one  of  the  component  forces  of 
the  Army  of  the  United  States  may  not  hold  a  commission  in  another 
such  component,  and  if  he  be  appointed  to  any  such  second  office^ 
lie  thereby  vacates  his  former  commission. 

Ops  J.  A.  G.  64:-311,  Aug.  30,  1917. 

OFFICE :  Eligibility  of  women  physicians  for  appointment  in  the  Officers'" 
Reserve  Corps. 

It  is  not  allowable  by  law  to  appoint  female  physicians  to  military 
office  in  the  medical  section  of  the  Officers'  Reserve  Corps  of  the 
Army.  The  provisions  of  the  national  defense  act  (39  Stat.  166) 
should  be  construed  in  connection  with  other  legislation  on  the  sub- 
ject, which  contemplates  that  officers  and  soldiers  of  the  military 
service  should  be  males  who  are  physically  fit  for  the  varying  duties 
incident  to  the  military  service.  Women  physicians  would  not  have 
the  physical  qualifications  which  would  be  required  for  the  perform- 
ance of  all  duties  which  may  be  required  of  a  medical  officer. 

Ops.  J.  A.  G.  64-012,  Aug.  30,  1917. 

PAY  AND  ALLOWANCES:  Mileage  of  officers  on  camp-inspection  duty. 

Officers  engaged  in  the  inspection  of  camp  sites  may  lawfully  claim 
mileage  for  travel  performed  under  competent  orders  from  railroad 
stations  to  camp  sites  and  return  to  railroad  stations. 

Ops.  J.  A.  G.  9^210,  Aug.  30,  1917. 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.      125 

APPBOPBIATIONS :  Installation  of  elevators  in  an  existing  building. 

The  installation  of  elevators  in  a  quartermaster  depot  does  not  fall 
within  the  restrictions  of  section  1136,  Revised  Statutes,  regarding 
the  construction  of  buildings  of  a  permanent  character.  The  sec- 
tion has  no  apj)lication  to  repairs  or  to  substantial  improvements. 
The  appropriation  "Barracks  and  quarters"  is  available  for  the 
installation  of  these  elevators. 

Ops  J.  A.  G.  5-245.1,  Aug.  31,  1917. 

ARMY:  Pay  and  allowances;  Grades  of  mess  sergeant,  supply  sergeant, 
and  mechanic  in  supply  companies  organized  under  section  2  of  selec- 
tive draft  act. 

The  provisions  of  section  2  of  the  selective  draft  act  (40  Stat.  76, 
77)  authorizing  the  organization  and  officering  of  special  and  tech- 
nical troops  confers  upon  the  President  authority  to  adopt  for  the 
purpose  of  the  organization  of  such  troops  any  grade  known  to  any 
branch  of  the  Army  with  the  pay  and  allowances  of  that  grade,  but 
does  not  authorize  the  President  to  adopt  one  grade  and  attach 
thereto  the  pay  and  allowances  of  another  grade.  Hence  the  Presi- 
dent may  j)rovide,  for  the  supply  companies  to  be  organized,  a  mess 
sergeant  with  the  pay  and  allowances  of,  say,  a  supply  sergeant  of 
Infantry;  and  a  mechanic  with  the  pay  and  allowances  of,  say,  a 
mechanic  of  Field  Artillery. 

Ops.  J.  A.  G.  6-200,  Aug.  31,  1917. 

MILITARY  INSTRTJCTION :  Detail  of  reserve  officers  as  instructors  at 
schools  and  colleges. 

Members  of  the  Officers'  Reserve  Corps  and  officers  of  the  National 
Army,  as  such,  can  not  legally  be  detailed  as  military  instructors  at 
schools  and  colleges,  since  it  is  clear  from  the  language  of  section  45 
of  the  national  defense  act  of  June  3,  1916  (39  Stat.  166,  192)  that 
only  active  or  retired  officers  of  the  Regular  Army  can  be  so 
detailed. 

Ops.  J.  A.  G.  56-314,  Aug.  31,  1917. 

OFFICE:  Rank;  Promotions  to  fill  temporary  vacancies  in  the  Regular 
Army. 

Promotions  to  vacancies  in  the  Regular  Army  caused  b}^  the  ap- 
pointment of  officers  thereof  to  higher  grades  in  forces  other  than 
the  Regular  Army  should  be  made  by  promotion,  according  to  sen- 
iority, of  officers  who  at  the  date  of  such  vacancies  are  serving 
under  commissions  in  the  next  lower  grade  of  the  arm,  staff  corps,  or 
department  in  which  the  vacancies  occur. 

Ops.  J.  A.  G.  82-121,  Sept.  4,  1917. 

PUBLIC  PROPERTY :   Sale  of  stores  to  crews  of  Army  transports. 

The  Secretary  of  War  may  by  regulation  authorize  the  procure- 
ment and  sale  to  members  of  crews  on  transports  of  supplies  neces- 
sary for  their  comfort  and  welfare  during  a  voyage,  the  payment 
therefor  to  be  deducted  from  their  pay  when  due. 

Ops.  J.  A.  G.  94-124,  Sept.  7, 1917.  * 

PUBLIC  PROPERTY:  Transfer  of  surplus  spruce  lumber  to  allied  Gov- 
ernments. 

The  transfer  of  surplus  spruce  lumber  by  this  Government  to  the 
allied  Governments  at  war  with  Germanv  on  the  basis  of  reimburse- 


126     DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENEKAL  OF  ARMY. 

ment  of  the  cost  of  the  same  should  not  be  regarded  as  a  sale  within 
the  usual  meaning  of  the  term,  and  hence  does  not  come  within  the 
provisions  of  section  1241,  Revised  Statutes. 
Ops.  J  A.  G.  76-011.1,  Sept.  10,  1917. 

APPROPRIATIONS :   Damage  to  railroad  equipment  on  Government  tracks 
at  cantonments,  etc. 

The  appropriation  "  Transportation  of  the  Army  and  its  supplies  " 
(40  Stat.  40,  53)  is  available  for  expenses  of  repairing  railroad  equip- 
ment damaged  on  Government  tracks  at  Army  cantonments  and  other 
military  stations  while  in  the  possession  of  and  operated  by  the  Gov- 
ernment. 

Ops.  J.  A.  G.  5-247,  Sept.  11, 1917. 

ACCOUNTS:  Examination  and  settlement  of  accounts  in  France. 

The  examination  and  settlement  of  money  and  property  accounts 
in  France  are  lawful. 

Ops  J.  A.  G.  78-380,  Sept.  14,  1917. 

CONTRACTS:  Compulsory  orders. 

Under  section  120  of  the  national  defense  act  (39  Stat.  166,  213) 
the  mere  placing  of  an  order  for  the  supplies  or  materials  required  is 
sufficient  without  the  execution  of  a  formal  contract  therefor.  No  ad- 
vertising for  bids  in  any  form  whatever  or  filing  of  bids  is  necessary. 
Revised  Statutes,  section  3744,  and  Army  Regulations  563,  do  not  ap- 
IDly  to  such  contracts. 

Ops.  J.  A.  G.  76-340,  Sept.  15,  1917. 

ARMY:   Organization. 

There  is  but  one  Army  of  the  United  States,  and  every  organiza- 
tion, bureau,  officer,  and  man  in  the  military  service  is  a  part  of  it. 
Transfers  of  enlisted  personnel  from  one  force  to  another,  in  the 
sense  of  absolute  incorporation  in  the  force  to  which  transferred,  is 
permissible  under  the  law. 

Ops.  J.  A.  G.  6-200,  Sept.  17,  1917. 

AlilENS:   Enforcement  of  Belgian  conscription  law  in  the  United  States. 

Under  the  act  of  May  7,  1917  (40  Stat.  39),  amending  section  10 
of  the  Federal  Penal  Code,  the  procuring  of  enlistments  in  the 
United  States  for  foreign  armies  is  permitted  to  those  countries  at 
war  with  a  country  with  which  the  United  States  is  at  war,  provided 
such  enlistments  are  obtained  under  regulations  prescribed  by  the 
Secretary  of  War.  This  statute  can  not,  consistently  with  the  prin- 
ciple of  State  sovereignty,  be  construed  to  permit  any  procedure 
by  a  foreign  government  in  this  country  beyond  steps  to  procure 
^loluntary  enlistments. 

Ops.  J.  A.  G.  34-007,  Sept.  18,  1917. 

RANK:   Inclusion  of  service  in  District  of  Columbia  Militia  as  service  in 
determining  relative  rank. 

Service  as  a  commissioned  officer  of  the  National  Guard  of  the 
District  of  Columbia,  not  rendered  to  the  United  States  under  a  call 
of  draft  for  Federal  service,  can  not  be  included  as  service  for  the 
determination  of  relative  rank. 

Ops.  J.  A.  G.  82-211,  Sept.  18, 1917. 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.      127 

TERRITORIES:  Authority  of  Alaska  Road  Commission   to   delegate  its 
functions. 

The  authority  of  the  Board  of  Road  Commissioners  for  Alaksa  to 
approve  and  certify  vouchers  for  payment  can  not  be  delegated, 
even  with  the  approval  of  the  Secretary  of  War,  for  the  reason 
that  the  statute  establishing  said  board  spocifically  requires  ex- 
penditure of  the  road  and  trail  portion  of  the  "  Alaska  fund  "  (33 
Stat.  616)  upon  vouchers  approved  and  certified  by  said  board. 

Ops.  J.  A.  G.  92-160,  Sept.  18,  1917. 

DISCHARGE :   Effect  of  illegal  discharge. 

An  enlisted  man  in  the  National  Guard  duly  signed  the  Federal 
enlistment  contract  provided  by  section  70,  national  defense  act 
(39  Stat.  166,  201).  Thereafter  and  upon  the  completion  of  three 
years  of  service  he  vras  discharged,  but  not  in  accordance  with  the 
requirements  of  law.  Held^  that  such  discharge  is  illegal  and  not 
binding  on  the  Government. 

Ops.  J.  A.  G.  68-052,  Sept.  21,  1917.  i.  .  .  , 

TJNIFORM:  Army  field  clerks  and  field  clerks,  Quartermaster  Corps. 

While  Army  field  clerks  and  field  clerks.  Quartermaster  Corps, 
are  officers  in  the  Military  Establishment  they  are  not  officers  of  the 
Army  in  the  sense  that  they  are  permitted  to  wear  the  uniform  of 
the  officer  as  provided  by  the  terms  of  section  125  of  the  national 
defense  act  (39  Stat.  166,  216).  By  the  proviso  contained  in  said  sec- 
tion the  Secretary  of  War  may  issue  orders  designating  them  as  being 
entitled  to  wear  the  uniform  of  the  United  States  Army  and  pre- 
scribing an  appropriate  and  distinguishing  mark.  They  are  not 
entitled  to  have  their  uniforms  issued  to  them  by  the  Government 
as  is  done  in  the  case  of  enlisted  men,  but  are  required  to  purchase 
them  individually. 

Ops.  J.  A.  G.  96-140,  Sept.  22,  1917. 

CLAIMS:   Loss  by  Government  of  private  mount  and  horse  equipment  of 
officer. 

An  officer,  temporarily  assigned  to  mustering  duty,  on  March  21, 
1917,  turned  over  to  a  camp  quartermaster  for  safe  keeping  his 
private  mount,  saddle,  blankets,  etc.  Three  months  later,  when  he 
reclaimed  the  horse  and  equipment,  they  were  not  to  be  found,  but 
apparently  had  been  erroneously  issued  by  the  quartermaster  to 
some  organization.  Held:  (1)  the  Secretary  of  War  may  lawfully 
grant  special  authority  for  the  purchase  of  this  horse  at  a  valuation 
to  be  determined  by  a  board  of  officers,  subject  to  the  provision  of 
Army  Regulations  1095  prohibiting  the  payment  of  a  greater  sum 
for  an  officer's  horse  than  the  average  price  paid  by  the  Government 
for  horses  for  the  mounted  service  during  the  preceding  fiscal  year; 
(2)  the  loss  of  the  saddle,  blankets,  etc.,  does  not  fall  within  the  pro- 
visions of  the  act  of  March  3,  1885  (23  Stat.  350),  providing  for  the 
reimbursement  of  officers  and  enlisted  men  for  the  value  of  private 
l^ropertv  lost  or  destroyed  in  the  militarv  service. 

Ops.  J.  A.  G.  94r-01i;  Sept.  26, 1917. 

PAY  AND  ALLOWANCES :   Private  mounts  of  reserve  officers. 

Only  those  reserve  officers  who  had  acquired  private  mounts 
while  in  the  service  and  prior  to  the  receipt  by  them  of  General 


128     DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  AEMY. 

Orders,  No.  113,  War  Department,  1917,  are  entitled  to  have  such 
mounts  shipped  and  maintained  at  public  expense. 
Ops.  J.  A.  G.  94-011,  Sept.  27, 1917. 

DISCIPLINE : Right  of  accused  to  testify  as  witness  or  to  make  unsworn 
statement. 

The  accused  may,  at  his  option,  be  sworn  and  take  the  stand  as  a 
witness,  but  in  so  doing  he  occupies  no  exceptional  status  and  be- 
comes subject  to  cross-examination,  like  any  other  witness.  The 
accused  may  make  an  unsworn  written  or  verbal  statement.  The 
making  of  such  an  unsworn  statement  does  not  subject  the  accused 
to  cross-examination. 

Ops.  J.  A.  G.  30-426,  Sept.  28,  1917. 

PAY  AND  ALLOWANCES:  Stoppage  of  pay  to  satisfy  indebtedness  for 
alimony. 

There  is  no  statute  or  Army  regulation  authorizing  the  stoppage 
of  a  soldier's  pay  to  satisfy  a  claim  for  alimony. 
Ops.  J.  A.  G.  74-111.3,  Oct.  2,  1917. 

ALIENS :   Naturalization  of  members  of  National  Guard. 

The  provisions  of  section  2166,  Revised  Statutes,  regarding  nat- 
uralization based  on  military  service  in  the  Armies  of  the  IJnited 
States  do  not  include  service  in  the  militia  when  in  the  service  of 
the  United  States. 

Ops.  J.  A.  G.  4^500,  Oct.  4,  1917. 

PAY  AND  ALLOWANCES:   Commutation  of  quarters  and  rations  of  fe- 
male nurses  on  duty  in  the  field. 

Female  nurses  on  duty  in  the  field  are  not  entitled  to  commuta- 
tion of  quarters  when  tent  quarters  are  available.  They  are  entitled 
to  commutation  of  rations  at  the  rate  of  $1  per  day  only  in  the 
event  that  rations  in  kind  can  not  be  economically  issued.  If  such 
rations  in  kind  can  be  so  furnished,  they  are  entitled  to  commutation 
of  rations  at  the  rate  of  40  cents  per  day. 

Ops.  J.  A.  G.  6-227.2,  Oct.  4, 1917. 

PAY  AND  ALLOWANCES:   Stoppage  of  pay  for   damages   to   property, 
effect  upon,  where  trial  by  court-martial  results  in  acquittal. 

The  findings  of  a  board  of  officers  appointed  to  investigate  and 
fix  the  amount  of  damages  to  a  Government  motor  car  in  assessing 
the  amount  of  the  damages  against  a  soldier,  should  not  be  set  aside 
merely  because  the  soldier  was  thereafter  tried  by  court-martial  for 
acts  connected  with  such  damages  to  the  motor  car  and  was  acquitted 
therefor. 

Ops.  J.  A.  G.  80-010,  Oct.  4,  1917. 

INSIGNIA  OF  MERIT:   Unauthorized  wearing  of  service  ribbons. 

The  unauthorized  wearing  by  civilians  of  campaign  badges  is  made 
unlawful  by  section  125  of  the  national  defense  act.  (39  Stat.  166, 
216.) 

There  is  no  statute  forbidding  their  unauthorized  use  by  officers 
or  enlisted  men,  but  such  persons  may  be  subjected  to  disciplinary 
action. 

Ops.  J.  A.  G.  46-300,  Oct.  5, 1917. 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.      129 

OFFICE:   Pay  and  allowances;   De  facto  offtcer  rendering  services  while- 
awaiting  result  of  physical  examination. 

Payiiieiit  can  not  be  legally  made  for  services  rendered  by  a  civilian 
physician  as  a  medical  officer  for  the  period  between  the  time  of  his 
appointment  and  his  subsequent  notification  that  he  had  failed  to 
pass  his  physical  examination,  since  he  was  simply  a  de  fcvcto  officer 
during  such  period.  It  is  immaterial  that  the  said  notification  was 
delayed  through  oversight  on  the  part  of  the  military  authorities, 
and  that  the  appointee,  having  in  the  meantime  been  ordered  to 
service,  rendered  such  services  in  good  faith. 

Ops.  J.  A.  G.  58-700,  Oct.  5,  1917. 

AUTOPSY:   Right  to  perform;  Oath  of  enlistment  not  required  of  drafted 
men. 

A  division  surgeon  has  the  legal  right  to  perform  an  autopsy 
in  all  cases  of  death  of  officers  and  enlisted  men,  including  drafted, 
men,  if  there  is  a  sound  military  reason  therefor. 

Drafted  men  need  not  and  ought  not  to  be  sworn  into^  tlie 
service. 

Ops.  J.  A.  G.  6-227.6,  Oct.  6,  1917. 

MEDICAL  TREATMENT:  Legality  of  requirements  as  to  vaccination  and 
inoculation  in  the  Army. 

The  Secretary  of  War  may  take,  and  it  is  his  duty  to  take,  such 
means  to  preserve  the  health  of  the  Army  as  medical  science  con- 
siders reasonably  necessary  and  desirable.  Hence,  individual  objec- 
tions to  vaccination  and  inoculation  should  be  disregarded. 

Ops.  J.  A.  G.  6-227.6,  Oct.  6,  1917. 

DESERTION:   Administrative  determination  that   escaped  garrison  pris- 
oner is  a  deserter. 

For  the  purpose  of  securing  his  apprehension  it  is  competent  for 
the  military  authorities  to  determine  administratively  that  an  escaped 
garrison  prisoner  is  a  deserter  and  to  offer  and  pay  the  reward  of 
$50  for  his  apprehension  and  return.  It  is  immaterial  to  this  ques- 
tion whether  or  not  he  is  thereafter  tried  for  desertion. 

Ops.  J.  A.  G.  26-240,  Oct.  8,  1917. 

OFFICE  III  Ale. 

Except  as  regards  the  Officers'  Reserve  Corps,  veterinarians,  and 
promotion  from  the  ranks,  persons  not  citizens  of  the  United  States 
may  lawfully  be  commissioned  officers  of  the  Army  of  the  United 
States. 

Ops.  J.  A.  G.  64-213.1,  Oct.  13,  1917. 

ARTICLES  OF  WAR  LXXII  H. 

The  auxiliary  remount  depots  at  the  several  camps  are  subject  to 
the  court-martial  jurisdiction  of  the  commanding  officers  of  the  de- 
partment witliin  the  territorial  limits  of  Avliich  such  canij)s  may  be^ 
located.  General  Orders,  No.  96,  W.  D.,  July  20, 1917,  amending  para- 
graph 191,  A.  R.,  does  not  withdraw  them  from  such  jurisdiction^ 

Ops.  J.  A.  G.  30-320,  Oct.  16,  1917. 

151738—20 9 


130     DIGEST   OF  OPINIONS  JUDGE  ADVOCATE   GENERAL  OF  ARMY. 

ENLISTMENT  I  A:  Army  II;  War  I  C. 

The  act  of  July  24,  1917,  authorizing  the  President  to  increase 
temporarily  the  Signal  Corps  of  the  Army,  does  not  empower  him 
to  recruit  Signal  Corps  regiments  to  assist  in  the  work  of  cutting 
spruce  timber  in  logging  camps,  to  be  used  in  airplane  construction. 
If  other  means  of  obtaining  the  necessary  materials  had  failed,  the 
President,  as  Commander  in  Chief,  would  have  power  to  cause  the 
work  to  be  done  directly  by  the  military  forces. 

Ops.  J.  A.  G.  6-020,  Oct.  19,  1917. 

ALIEN  ENEMIES :   Prohibited  zones. 

A  citizen  of  Germany  who  is  an  enlisted  man  in  the  Army  of  the 
United  States  is  not  forbidden  by  the  President's  proclamation  of 
April  6,  1917,  to  go  within  one-half  mile  of  any  fort,  etc.,  when 
ordered  to  do  so  bv  his  superiors. 

Ops:  J.  A.  G.  99-211,  Oct.  26,  1917. 

SIGNAL  CORPS :   Rating  of  junior  military  aviator. 

Section  6  of  the  act  of  July  24,  1917  (40  Stat.  243,  244) ,  provides 
that  no  person  shall  receive  the  rating  of  military  aviator  until  he 
shall  have  served  creditably  for  three  years  as  an  aviation  officer 
with  the  rating  of  a  junior  military  aviator,  except  that  in  time  of 
war  any  officer  or  enlisted  man  who  especially  distinguishes  himself 
in  active  service  may,  upon  recommendation  of  the  Chief  Signal 
Officer  of  the  Army,  be  rated  as  a  military  aviator  without  regard  to 
examination  or  to  length  of  service.  The  service  referred  to  is  serv- 
ice in  the  forces  of  the  United  States,  and  service  in  the  Army  of  any 
other  nation  can  not  be  made  the  basis  of  the  rating  of  military 
aviator. 

Ops.  J.  A.  G.  72-181,  Oct.  26,  1917. 

SELECTIVE-DRAFT    ACT:    Intoxicating    liquors;    Sale    of    intoxicating 
liquors  within  5-niile  zones  and  to  persons  in  military  service. 

Under  the  provisions  of  section  12  of  the  selective-draft  act  of 
May  18, 1917  (40  Stat.  76,  82),  and  the  regulations  made  by  the  Presi- 
dent thereunder,  respecting  the  prohibition  of  intoxicating  liquors, 
violations  of  such  law  when  committed  by  civilians  are  civil  offenses 
and  should  be  brought  to  the  attention  of  the  local  United  States 
attorney  with  a  request  that  such  offenders  be  prosecuted,  violations 
by  persons  subject  to  military  law  should  be  made  the  subject  of 
disciplinary  action  either  by  trial  by  court-martial  under  article  of 
w^ar  96  or  by  other  appropriate  means. 

Said  section  12  legislates  for  three  respective  territorial  sections: 
(1)  Territory  within  5  miles  of  military  camps  exclusive  of  that 
portion  of  cities  or  towns  which  is  more  than  one-half  mile  from 
any  portion  of  such  camps;  (2)  territory  coextensive  with  military 
stations,  cantonments,  camps,  forts,  posts,  officers'  and  enlisted  men's 
clubs  being  used  for  military  purposes;  (3)  all  territory  within  the 
jurisdiction  of  the  United  States. 

Military  camps  within  the  contemplation  of  section  12,  defined. 
What  constitutes  a  violation  of  the  statute  in  the  several  localities 
above  enumerated,  explained. 

Ops.  J.  A.  G.  48-100,  Oct.  30,  1917. 


DIGEST  OF  OPINIONS  JUDGE  ADVOCATE  GENERAL  OF  ARMY.      131 
ENLISTMENT  I  B  2 — MARINE  CORPS. 

Section  7  of  the  act  of  May  18,  1917,  continuing  in  force  during 
the  present  emergency  all  enlistments  in  force  on  ther  date  of  its 
approval,  applies  only  to  the  Army  and  does  not  apply  to  the 
Marine  Corps. 

Ops.  J.  A.  G.  28-240,  Oct.  31,  1917. 

PAY  AND  ALLOWANCES :   Right  to  expert  rifleman's  pay  where  Cavalry 
is  reorganized  temporarily  as  Field  Artillery. 

The  requirement  of  paragraph  1345,  Army  Regulations,  that  the 
allowance  of  additional  pay  to  an  expert  rifleman,  sharpshooter,  or 
marksman  shall  be  payable  only  so  long  as  the  soldier  in  question 
continues  to  be  a  member  of  an  organization  armed  with  a  rifle, 
should  not  be  regarded  as  applicable  to  the  members  of  Cavalry 
regiments  reorganized  temporarily  as  Field  Artillery  regiments ;  but 
the  existing  rifle  qualifications  of  such  men  should  continue  for  such 
time  as  is  reasonably  necessary  for  them  to  qualify  in  the  equivalent 
rating  in  the  Field  Artillery. 

Ops.  J.  A.  G.  242.142,  Nov.  3,  1917. 

SELECTIVE-DRAFT  ACT:   Militia;  Preservation  of  integrity  of  National 
Guard  organization  called  into  Federal  service. 

The  War  Department  is  under  no  obligation  to  preserve  the  integ- 
rity of  the  National  Guard  units  drafted  into  the  Federal  service. 
The  National  Guard  element  of  the  Army  of  the  United  States  is  not 
to  be  distinguished  from  any  other  composite  element  thereof,  and, 
with  certain  exceptions  as  to  certain  officers,  all  members  of  the 
Army  of  the  United  States  are  upon  the  same  plane,  under  the  same 
legal  obligation,  and  have  the  same  legal  duties.  During  the  war 
there  is  but  one  Army,  the  Army  of  the  United  States,  and  every 
organization,  bureau,  officer,  and  man  in  the  military  service  is  a 
part  of  it.  Accordingly,  members  of  the  Army  of  the  United  States 
drafted  therein  from  coast  artillery  organizations  of  the  National 
Guard  have  no  more  legal  connection  with  the  Coast  Artillery  than 
with  any  other  branch  of  the  service,  and  they  may  be  assigned  to 
any  branch  of  the  service  and  organized  and  officered  as  the  Presi- 
dent sees  fit. 

Ops.  J.  A.  G.  322.7,  Nov.  3, 1917. 

PAY  AND  ALLOWANCES:    Second-enlistment  pay  after  service  in  Philip- 
pine Scouts. 

Enlisted  service  in  the  Philippine  Scouts  entitles  a  soldier  to  sec- 
ond-enlistment pay  upon  enlistment  in  the  Regular  Armv. 
Ops.  J.  A.  G.  242.121,  Nov.  20,  1917. 

APPROPRIATIONS:    Emergency    printing    procured    from    a    commercial 
printing  company. 

Owing  to  very  slow  delivery  of  work  by  the  Government  Printing 
Office,  the  gun  division,  office  of  the  Chief  of  Ordnance,  informally 
procured  from  a  commercial  printing  establishment  a  supply  of 
paper  printed  to  order  at  a  cost  of  $224.  The  bill  may  be  paid  upon 
approval  of  the  order  and  the  voucher  by  the  Secretary  of  War,  pay- 
ment to  be  made  from  the  appropriation  "  Contingent  expenses  of 
the  War  Department." 

Ops.  J.  A.  G.  486.4,  Dec.  4,  1917. 


132     DIGEST   OF  OPINIONS  JUDGE  ADVOCATE   GENERAL  OF  ARMV. 

RETIREMENT :   Retirement  of  provisional  second  lieutenant. 

There  is  no  authority  in  law  for  the  retirement  of  a  provisional 
second  lieutenant  found  incapacitated  for  service  by  reason  of  a  dis- 
ability incurred  in  line  of  dutv. 

Ops.  J.  A.  G.  210.85,  Dec.  6/1917. 

DISCIPLINE:   Disloyal  officers  and  soldiers. 

In  all  cases  where  officers  and  soldiers  in  the  Army  of  the  United 
States  demonstrate  by  their  conduct  or  speech  disloyalty  to  the  Gov- 
ernment of  the  United  States  and  sympathy  with  its  enemies  the  fol- 
lowing general  policy  is  recommended : 

(a)  In  the  case  of  any  officer  or  soldier  who  has  by  his  speech  or 
conduct  demonstrated  an  attitude  or  connnitted  an  act  of  disloyalty, 
it  is  recommended  that  he  be  brought  to  trial  by  a  general  court- 
martial  as  promptly  as  possible,  whenever  the  necessary  data  can  be 
obtained  as  a  basis  for  charges. 

(h)  If  suitable  data  for  such  charges  can  not  be  obtained,  it  is 
recommended  that  a  suspected  officer  be  dismissed  or  discharged 
under  the  authority  of  the  particular  statute  which  may  apply  ir 
his  case,  and  that  a  suspected  enlisted  man  be  discharged  from  the 
service. 

(c)  If  any  such  officer  so  dismissed  or  discharged,  or  any  such  en- 
listed man  so  discharged,  from  the  service  be  found  to  be  an  alien 
enemy  of  the  United  States  it  is  recommended  that  he  be  promptly 
interned  for  the  period  of  the  war,  and  that  if  he  be  a  citizen  of  tlie 
United  States  or  an  alien,  not  an  alien  enemy,  that  he  be  promptly 
reported  to  the  civil  authorities  for  surveillance  and  for  such  action 
as  may  be  found  possible  to  take  against  him  under  the  authority  of 
existing  law  or  of  any  statute  hereafter  enacted  by  Congress. 

Ops.  J.  A.  G.  250.45,  Dec.  8,  1917. 

DESERTION:   Discharge;  Disposition  of  alleged  deserter. 

The  commanding  general  of  a  tactical  division,  to  whose  command 
an  alleged  deserter  has  been  delivered,  should  have  a  physical  ex- 
amination made  of  the  soldier.  If  such  examination  shows  him  to 
be  fit  for  service,  and  if  in  the  judgment  of  such  commanding  gen- 
eral the  interests  of  the  Goverment  so  dictate,  the  soldier  may  be 
returned  to  his  company  commander,  whether  or  not  a  request  of 
such  return  has  been  made  by  his  company  commander.  (A.  E.  126.) 
When  an  alleged  deserter,  returned  to  military  control,  is  found 
to  be  physically  unfit  for  service,  if  he  refuses  to  admit  desertion, 
and  if  it  be  deemed  inadvisable  to  try  him  for  his  alleged  oifenses, 
application  should  be  made  to  the  Secretary  of  War  for  authority 
to  discharge  him  without  trial.  (A.  R.  126.)  A  soldier  so  discharged 
should  be  given  the  certificate  of  discharge  provided  for  in  subdi- 
vision 3  of  Armv  Regulations  150. 

Ops.  J.  A.  G.*319.12,  Dec.  17,  1917. 

APPROPRIATIONS :   Heat  and  light  for  buildings  of  Knights  of  Columbus. 

There  is  no  statutory  authority  under  which  fuel  and  light  can 
be  furnished  by  the  Government  to  the  buildings  of  the  Knights 
of  Columbus  at  the  cantonments,  and  the  War  Department  has  no 
authority  to  permit  the  disposition  of  public  property  except  as 
provided  for  by  Congress. 

Ops.  J.  A.  G.  680.32,  Dec.  19,  1917 


INDEX. 

[References  are  to  pages.] 

Absence  Without  Leave:  Page. 

Absence  after  revocation  of  furlough  is 6 

Expense  of  returnins:  soldiers 98 

Failure  to  join  organization  after  discharge  from  hospital 122 

Accidents.    See  Claims. 

Accounts: 

Examination  and  settlement  of  accounts  in  France 126 

Accused: 

Effect  of  irregularities  of  proceedings  upon  rights  of 80 

Right  to  testify  as  witness  or  make  iins\\<  rn  statement 128 

Ac;tive  Duty.     See  Duty. 

Adjutants: 

Oaths  not  administered  by  assistant  to  department 119 

Advertising: 

Designation  of  newspapers  for 120 

Affidavits: 

For  deferred  classification  of  employee 1 04 

Age  Limit.     See  Chaplains;  Draft;  Officers. 

Aids.    See  Staff  duty. 

Aircraft: 

Power  of  President  during  war  to  prevent  flying  of 68 

Signal  Corps  regiments  to  assist  in  cutting  spruce  for 130 

Alaska: 

Board  of  road  commissioners,  delegation  of  authority 127 

Alcoholic  Liquors.     See  Intoxicants. 

Aliens: 

Claim  for  exemption  by  nondeclarant 96 

Declarant  aliens  subject  to  draft 97 

Discharge  to  enlist  in  Army  of  own  country  not  authorized 55 

Enemy — 

Minor  enlisted  in  National  Guard 74 

Plights  of,  when  enlisted  in  Army  of  Ignited  States 57 

Zones  of  prohibition 130 

Enlistments  in  ITnited  States  for  foreign  armies 126 

Naturalization  of  members  of  National  Guard 128 

Alimony: 

Stoppage  of  pay  to  satisfy  claim  for 128 

Allies: 

Munitions  furnished  through  requisitioning  power  of  United  States 113 

Allowances.    See  Pay;  Pay  and  allowances;  Quarters;  Rations;  Subsistence. 

American  Expeditionary  Forces: 

Red  Cross  officials  under  military  jurisdiction  when  with 98 

American  National  Red  Cross.     See  Red  Cross. 

Apprehension  of  Deserters.     See  Reward. 

133 


134  INDEX. 

Appropriations: 

Barracks  and  quarters —  rage. 

Installation  of  elevators  in  (|nartermaster  depot 125 

Rental  oi'  building  in  Manila  for  soldiers  on  leave 121 

Contingencies  of  the  Army — 

Expense  of  returning  soldier  absent  without  leave 98 

Not  available  for  suppression  of  vice '. 77 

Contingencies,  headquarters  of  military  dept. — 

Purchase  of  envelopes  for  headquarters  of  military  departments 12 

Damages  and  loss  of  private  property — 

Clainls  for  damages  due  to  training  camp  work 40 

Damages  caused  by  motor  truck  not  used  in  movement  of  troops 79 

Medical  and  hospital  department — 

Civilian  labor  for  police  duty  at  hospital 77 

Treatment  of  contractor's  employees .' 48 

Treatment  of  insane  soldiers  in  private  institution^ 32 

Printing  and  binding — 

Work  done  by  commercial  concerns  in  time  of  war 20, 131 

Quartermaster  Corps — 

Civilian  labor  for  police  duty  at  hospitals .' . .         77 

Heating  and  lighting  fixtures  in  Y.  M.  C.  A .  buildings 77 

Quartermaster  Corps:  Incidental  expenses- 
Expenses  of  reporters  and  witnesses ]  23 

Telegrams  sent  by  Civil  Service  Commission  for  Ordnance  Dept 122 

Transportation  of  the  Army  and  its  supplies — 

Repair  oi  railroad  equipment  damaged  on  Government  tracks. > 126 

Army: 

See  also  specific  title. 

Composition  and  organization 53,  77 

Drafted  forces  not  part  of  Regular 1 21 

Employment  of,  to  aid  civil  authority 5  '• 

Increase  in  enlisted  personnel  of  Regular 116 

Army  Field  Clerks.     See  Field  clerks. 
Army  Medical  School: 

Rental  of  building  for  use  of 120 

Army  Nurse  Corps: 

Commutations  of  quarters  and  subsistence  for 82, 128 

Commutation  of  rations  while  on  duty  in  France 118 

Articles  op  War: 

Construction  of  Article  of  War  45 45 

Construction  of  Article  of  War  48 54,  98 

Offenses  prior  to  March  1,  1917,  tried  under  old 69 

Assistants.     See  Names  of  offices  concerned. 
Authorities.     See  Civil  authorities;  Courts-martial. 
Authority: 

Delegation  of — 

Alaska  Road  Commission 127 

Secretary  of  War  to  act  on  reports  of  surveys •. 15 

To  employ  Army  of  United  States  to  suppress  violence 53 

Automobiles.     See  Motor  vehicles. 
Autopsy: 

Division  surgeon  has  right  to  perform 129 

Aviation  Section,    See  Signal  Corps;  Signal  Officers'  Reserve  Corps. 


INDEX.  135 

Aviators: 

Junior  military —  I'age. 

Ca/ptain  assigned  to  active  duty  as BH 

Rating  of 130 

Pay  of  flying  cadets l^-^ 

Badoes: 

See  also  Decorations  of  honor. 

Issue  of  campaign  badges  to  members  of  training  camps 37 

Baggaoe: 

Transportation — 

Captain  of  Philippine  Scouts  retired  as  master  signal  electrician 3G 

Officer  order  to  duty  in  field 103 

Balloonists: 

Extra  pay  for  aerial  flights -• ^ 

Bands: 

Competition  with  ci^dlian  musicians 53, 120 

Detail  of  mess  sergeants  to  Coast  Artillery  bands 11 

Barracks.     See  Quarters. 
Beverages.     See  Intoxicants. 
Bids,     See  Contracts. 
Boards: 
Draft- 
Correction  of  rulings  of,  when  men  were  erroneously  certified 81 

Finality  of  decisions  of 71, 81 

Not  authorized  to  compel  attendance  of  witnesses 81 

Reopening  of  case  after  induction 81 

Efficiency — 

Expenses  of  reporters  and  witnesses 123 

Examining — 

Expenses  of  reporters  and  witnesses 1 23 

Signal  Corps  Reserve  Officers  attached  to  Aviation  Section 85 

Bonds: 

Effect  of  failure  of  contractor  to  furnish 55 

Reserve  officers  assigned  as  disbursing  officers  required  to  give 29 

Bounties.    See  Pay  and  allowances — reenlistment. 
Buildings.    See  Leases;  Public  property. 
Cables: 

Censorship 117 

Cadets.    See  Aviators;  Coast  Guard;  United  States  Military  Academy. 
Call  into  Federal  Service.    See  National  Guard. 
Campaign  Badges,    See  Badges. 
Camps  : 

Campaign  badges  for  members  of  reserve  officers'  training 37 

Civilian  employee's  pay  while  attending  reserve  oflficers'  training 42 

Claims  for  damages  to  private  property  due  to  work  at  training 46 

Defined 58 

Pay  and  allowances  of  men  in 61 

Regulations  prohibiting  intoxicants  applicable  to  Porto  Rico 57 

Service  can  not  be  counted  in  computing  longevity  pay 86 

War  risk  insurance  for  members  of  training 106 

Canal  Zone: 

Censorship  of  mail  in 8& 

Transportation  for  troops  on  west  side  of 116 


136  INDEX. 

Cantonments:  Page. 

Options  for  renewal  of,  leases  from  year  to  year 122 

Captured  Property: 

Supplies  used  for  subsistence  of  prisoners  of  war 20 

-Cars.     See  Motor  vehicles. 

Cavalry: 

Regiments  organized  provisionally  as  Field  Artillery 88,  98 

Censorship: 

Cable  dispatches 117 

Mail  in  Canal  Zone. 88 

Chaplains  : 

Eligibility  of  Christian  Science  readers 54 

Qualifications  for  appointment  as 114 

Charges.    See  Claims;  Contracts;  specific  names  of  crimes. 

China: 

Subjects  may  not  enlist  in  Medical  Enlisted  Reserve  Corps 82 

Christian  Science  Church: 

Readers  eligible  to  appointment  as  chaplains 54 

Citizenship: 

Aliens  lose  American  citizenship  upon  return  to  native  country 115 

Expatriation  after  enactment  of  draft  act 115 

Not  necessary  for  enlistment  in  United  States  Army  in  time  of  war 57 

Restoration  to  citizens  enlisted  in  foreign  armies 57 

Civil  Authorities: 

Application  of  State  laws  to  Federal  operations 68 

Apprehension  and  delivery  of  deserters  by 79 

Delivery  of  soldier  in  time  of  war  to 54 

Employment  of  Army  to  aid 53 

Expenses  for  returning  soldier  absent  without  leave 98 

Jurisdiction  over  alien  minor  enlisted  in  National  Guard 74 

Jurisdiction  over  capital  crimes  in  time  of  war 95 

Procedure  where  soldier  is  necessary  witness 99 

Right  to  hold  in  arrest  persons  in  military  service 78 

Civilian  Employees: 

Medical  and  hospital  treatment 42 

Pay.     See  Pay. 

Resignation  without  due  notice 78 

Right  to  wear  uniform 54 

Civilians.     See  Aliens;  Citizenship;    Civil  authorities;    Civilian  employees; 
Pay. 

Claims: 

Commutation  of  heat  and  light  and  quarters.     See  Quarters. 
Commutation  of  rations.     See  Rations. 
Contracts.    See  Contracts. 

Damages  caused  by  motor  truck  not  used  in  movement  of  troops 79 

Damages  to  private  property  due  to  training  camp  work 46 

Losses — 

House^hold  goods  of  officer  destroyed  by  fire  in  shipment 51 

Officers'  mount  while  in  military  service 26, 127 

Private  property  while  in  military  service 21,  35 

Stoppage  of  pay  for  damage  to  Government  motor  car 128 

Subsistence.     See  Subsistence. 

Traveling  expenses.     See  Mileage;  Traveling  expenses. 

Clergymen.     See  Chaplains. 


INDEX.  137 

Olerks.     See  Civilian  employees;  Field  clerks. 

Clothtno  :  Page. 

Allowance  for  members  of  National  Guard 18 

Loss  of  civilian  clotliing  of  officer .' 21 

Uniform.     See  Uniform. 

Coast  Artillery  Corps: 

Grade  of  mess  sergeant  in 11 

Gunner  loses  rating  when  transferred  to  Field  Artillery' 86 

OoAST  Guard: 

Cadets  and  cadet  engineers  not  entitled  to  war-risk  insurance 106 

Colleges.     See  Educational  institutions;  Reserve  Officers'  Training  Corps. 

Command: 

Commanding  officer  of  base  hospital  may  convene  courts-martial 99 

Jurisdiction  of  division  commanders 55 

Right  of  commanding  officer 85 

Commandeering.     See  Requisition. 

Commander  in  Chief  of  the  Army.     See  President  of  the  United  States. 

Commissions.     .S'eg  Officers;  Rank. 

Commutation  of  Heat  and  Light.     See  Quarters. 

Commutation  of  Quarters.     See  Quarters. 

Commutation  of  Rations.     See  Rations. 

Commutation  of  Subsistence.     A^ee  Subsistence. 

Company  Funds.     A^ee  Funds. 

Compensation.     See  Claims;    Line  of  duty;    Pay;    Reward;    Transportation; 
Traveling  expenses. 

Compulsory  Orders: 

For  supplies 126 

Condemnation.     See  Requisition. 

Conduct  Unbecoming  an  Officer: 

Drunkenness  at  a  military  hop 107 

Confinement: 

Crimes  which  justify  sentence  of 109 

Sentence  begins  on  date  of  order  publishing  case 118 

Conscientious  Objectors: 

Enlistment 56 

Conscription.     See  Aliens;  Draft. 

Contingent  Funds.     See  Appropriations. 

Continuous  Service  Pay.     See  Pay  and  allowances. 

Contract  Surgeons: 

Not  entitled  to  war  risk  insurance 107 

Contracts: 

Advance  payment 121 

Application  of  eight-hour  law  to  contracts  for  supplies  bought  in  open 

market 46,  56 

Application  of  State  laws  to  Federal  operations 68 

By  officer  or  employee  with  Government 79 

Cancellation — 

For  relief  of  contractor  not  authorized • 37, 119 

Compulsory  orders  for  supplies 126 

Construction  of,  when  containing  provision  for  estimated  quantities 25 

Correction  of  error  in  bid 15 

Cost  plus — 

Percentage  basis 15 

Effect  of  failure  of  contractor  to  furnish  bond 55 


138  INDEX. 

Contracts — Continued.  Page. 

Eight-hour  law  not  applicable  to  artillery  equipment 124 

Emergency  purchases  of  military  supplies 79 

Labor.    >See  Eight-hour  law ;  Pay. 
Leases.    See  Leases. 
Modification — 

For  relief  of  contractor  not  authorized 37, 119 

Settlement  of  claim  for  unliquidated  damages 118 

Unauthorized  contracts  by  National  Guard  for  horses  and  mules 117 

Conviction.     See  Courts-martial;  also  specific  name  of  offense. 
Corporals: 

Lance  corporal  is  not  a  noncommissioned  officer 53 

Correspondence.    See  Censorship;  Mail. 
Courts.     See  Civil  authorities. 
Courts-martial: 

Convening  authority  when  commanding  officer  is  accuser 80 

Confirming  authority  when  officer  is  sentenced  to  dismissal 80 

Effect  of  irregularities  upon  proceedings 80 

Findings — 

Reviewing  authority  may  disapprove 108 

Jurisdiction — 

Auxiliary  remount  depots 129 

Capital  offenses  in  time  of  war 95 

Civilians  on  Army  transport 110 

Offenses  committed  by  National  Guardsmen  prior  to  draft 119 

Offenses  committed  prior  to  enlistment 100 

Prisoners  of  war 100 

Members — 

Testimony  of '. 95 

Offenses  prior  to  March  1,  1917,  tried  under  old  Articles  of  War 69 

Place  of  trial  determined  by  expense  of  securing  witnesses 31 

Records — 

Amendment  of 94 

Procedure  where  sentence  is  improper  in  form 109 

Revision  invalid  when  member  of  court  not  qualified 94 

Revision  invalidated  by  introduction  of  new  evidence 108 

Reviewing  authority.     See  Reviewing  authority. 
Sentences.     See  Sentences. 
Special — 

Power  of  commanding  officer  of  base  hospital  to  convene 99 

Summary — 

Limitation  of  sentences  by 78 

Power  of  commanding  officer  of  base  hospital  to  convene 99 

Reduction  of  noncommissioned  officer  by 46 

Witnesses.     See  Witnesses. 
Cow: 

Expenditure  of  ration  savings  for  feed  for 40 

Crimes.     See  Civil  authorities;    Confinement;  Courts-martial;  specific  name 

of  offense. 
Cross-Examination.     See  Accused. 

Custody.     See  Civil  authorities;  Confinement;  Courts-martial. 
Damages.     See  Claims;  Contracts. 
Death.     See  Deceased  persons;  Line  of  duty. 


INDEX.  139 

Deceased  Persons: 

Burial  expenses —  Page. 

Cadets  of  United  States  Military  Academy J 10 

Decorations  of  Honor: 
See  also  Badges. 
President  as  commander  in  chief  may  authorize 57 

De  Facto  Officers.     See  Pay  and  allowances. 

Defense.    ^See  Accused ;  Evidence;  specific  name  of  offense. 

Deferred  Classification.    See  Draft. 

Demotion.    See  Rank. 

Dental  Corps: 

Appointees  from  standard  dental  colleges 30 

Basis  of  organization  in  Officers'  Reserve  Corps 77 

Qualifications  for  appointment  and  promotion  in 102 

Dental  Reserve  Corps: 

Officers  commissioned  with  grades  and  percentages  of  Medical  Corps 77 

Department  Commanders.    See  Command;  Coiu-ts-martial. 

Dependency: 

Aid  to  dependent  families  of  enlisted  men  of  National  Guard  and  Regular 
Army 11 

Depositions: 

Fees  for  taking 79 

Use  of,  in  desertion  cases  in  time  of  war  not  authorized 52 

Witnesses  in  military  service 99 

Desertion: 

Administrative  determination  that  escaped  garrison  prisoner  is  deserter. .       129 

Apprehension  and  delivery  of  deserters  by  civil  authorities 79 

Arrest  of  deserters  from  National  Guard  in  Federal  service 5 

Disposition  of  alleged  deserter 132 

Failure  to  respond  to  draft  constitutes 56 

Interpretation  of  Article  of  War  39  in  trials  for 22 

Sentence  for,  when  committed  in  time  of  peace 110 

Statute  of  limitation  affecting, 22,  79 

Trials  held  in  place  where  least  expensive  for  witnesses 31 

Detail.    See  Duty;  specific  name  of  organization  or  duty. 

Disability: 

See  also  Discharge;  Line  of  duty. 

Injuries  not  resulting  from  willful  neglect  or  immoral  conduct 83 

Retirement  of  provisional  second  lieutenant 132 

Disbursing  Officers: 

Bonds  may  be  required  from  reserve  officers 29 

Pay  of  de  facto  property  and 38 

Discharge: 

Dishonorable —   • 

When  authorized 44,  69. 109 

Dismissal  of  officers — 

Interpretation  of  Article  of  War  48 54,  98 

President  as  confirming  authority 80 

Temporary  and   provisional 84, 101 

Drafted  alien  not  discharged  to  enlist  in  Army  of  own  country 55 

Drafted  man  upon  certificate  of  exemption 81 

Drafted  minors 104 

Effect  of  illegal  discharge 127 

Enlisted  man  of  regular  Army  to  accept  temporary  commission 87 


140  INDEX. 

Discharge — Continued.  Page. 

National  Guard  officers  after  draft 59,  99 

National  Guard  Reserve — 

Enlistment  in  National  Guard  after 8 

Pay  affected.     See  Pay  and  allowances. 

Provisional  second  lieutenant  prior  to  expiration  of  statutory  period 9 

Rank  following  discharge.     See  Rank. 

Rejection  of  drafted  man  as  physically  unfit  subsequent  to  induction 81 

Traveling  expenses — • 

Enlisted  man  discharged  to  accept  commission 43 

Regular  Army  reservist 94 

Soldier  convicted  by  civil  court 43 

Under  proper  name  when  service  was  under  assumed  name 16 

Upon  expiration  of  enlistment  subsequent  to  May  18,  1917 38 

Disciplinary  Barracks  : 

Vocational  training  at 117 

Discipline.     See  Courts-martial;  Prisoners;  Rank;  Sentences;  name  of  specific 
offense. 

Disease.     See  Medical  treatment. 

Disloyalty: 

Procedure  for  treatment  of  disloyal  officers  and  enlisted  men 132 

Dismissal.     See  Discharge. 

Distinguished  Service  Medals: 

Authority  of  President  to  provide  for 57 

Division  Commanders: 

Jurisdiction  of 55 

Draft  : 

5'ee  aZso  Desertion;  National  Guard. 

Applicable  to  Porto  Rico 115 

Boards.     See  Boards. 

Claim  for  exemption  by  nondeclarant  aliens 96 

Declarant  aliens  subject  to * 97 

Discharge  of  aliens  subject  to 55 

Discharge  of  drafted  minors 104 

Discharge  of  National  Guard  officers  after 59 

Drafted  forces  not  part  of  Regular  Army 121 

Execution  of  affidavit  to  secure  deferred  classification  for  employee 104 

Exemptions 73 

Expatriation  after  enactment  of  draft  act 115 

Failure  to  respond  to,  constitutes  desertion 56 

Honorable  discharge  from  Regular  Army  does  not  exempt  from 73 

Members  of  Home  Guards 59 

National  Guard  officers 84 

Necessary  expenses  of  National  Guard  after 58 

Procedure  for  discharge  upon  certificate  of  exemption 81 

Registration  of  slackers 81 

Rejection  as  physically  unfit  subsequent  to  induction 81 

State  staff  corps  subject  to 58 

Voluntary  enlistment  in  Regular  Army  and  National  Guard  after 116 

Drinking.     See  Intoxicants. 

Dry  Zones.    See  Intoxicants. 

Duties.    See  Tariff. 


LNDEX.  141 

Duty: 

See  also  Service. 

Active—  Page. 

Longevity  pay  increases  for 43 

Retired  officers  and  enlisted  men  ordered  to 24, 49, 122 

Extra  and  special  defined 47 

Field- 

Allowances.    See  Quarters;  Subsistence. 

Officer  of  Infantry  as  judge  advocate  with  punitive  expedition G 

Flying.     See  Aviators:  Balloonists. 
Line  of  duty.     See  Line  of  duty. 

Police  duty  at  base  hospitals  by  enlisted  men 77 

Staff.     See  Staff  duty. 

Educational  Institutions: 

Reserve  officers  as  instructors  at 125 

Eight-Hour  Law: 

Application  to  contracts  for  supplies  bought  in  open  market 46,  5G 

Construction  of  Ohio  River  dam ]  24 

Contracts  for  horse  equipment  and  artillery  supplies 124 

Contracts  for  ordnance  supplies 124 

Extra  pay  for  overtime  work  by  mechanics  employed  by  Government. ...        55 
Suspension  of  in  cases  of  emergency 80 

Elevators: 

Installation  in  quartermaster  depot 125 

Employees: 

See  also  Civilian  employees;  Eight-hour  law. 

Medical  treatment  for  contractor's  employees  on  cantonment  construction.         48 

Competition  of  enlisted  men  wath  civilians 53 

Engineer  Corps: 

Draftsmen  not  entitled  to  war-risk  insurance ICG 

Field  clerks  not  entitled  to  war-risk  insurance 106 

Grade  of  first-class  privates  for  reservists  called  to  active  duty 9 

Enlisted  Men: 

Absence.     See  Absence  without  leave. 

Aid  to  dependent  families  of  men  in  National  Guard  and  Regular  Army.  .         II 

Competition  with  civilians  in  employment 5:J 

Detail  as  mess  sergeants 117 

Discharge.     See  Discharge. 
Duty.     See  Duty. 

Heat  and  light  allowance  when  assigned  to  public  quarters 18 

Insane.     See  Insane  persons. 

Making  good  time  lost  by 16 

Of  all  components  interchangeable 77 

Pay.     See  Pay  and  allowances. 
Rank.     See  Rank. 

Service  which  may  be  counted  for  retirement 104 

Transfer  from  one  force  to  another 126 

Travel.     See  Traveling  expenses. 

Enlisted  Reserve  Corps: 

Appointment  of  general  officers  for  regiments  of 113 

Assigned  to  duty  with  Regular  Army 113 

Member  called  to  active  duty  while  fatally  ill 100 

Organization  of  railway  engineer  regiments , 112, 113 

Pay.     A^ee  Pay  and  allowances.  .^     _ 


142  INDEX. 

Enlistment: 

Aliens.     See  Aliens.  Page. 

Conscientious  objectors : 56 

Continuation  during  emergency  not  applicable  to  Marine  Corps 131 

Continuation  of  active  service  in  National  Guard  after  termination  of 19 

Continued  in  force  during  war 38 

Discharge.     See  Discharge. 

Drafted  men  enlisted  from  date  specified  in  notice 56 

Drafted  men  not  required  to  take  oath  of 129 

Eligibility  for  Medical  Enlisted  Reserve  Corps'. 82 

Failure  to  respond  to  draft  constitutes  desertion 56 

Field  clerks  in  National  Guard 16 

Fraudulent — 

Date  of  final  statements  when  sentenced  for 39 

Effect  of 57 

Jurisdiction  of  courts-martial  over  offenses  committed  prior  to 100 

Period — 

Effect  of  unauthorized  furlough 73 

Furlough  to  Reserve  upon  expiration  of 73 

Persons  authorized  to  take  enlistments 100 

Qualification  for  enlistment  in  National  Guard 113 

Reenlistment — 

Continuous  service  pay  upon  application  within  three  months  for 30 

Deserter  not  eligible  for 57 

During  emergency 112 

Enlisted  man  discharged  to  accept  temporary  commission 86 

Repatriation  of  citizens  enlisted  in  foreign  armies 57 

Rights  of  alien  enemy  enlisted  in  United  States  Army 57 

Signal  Corps,  for  musical  purposes  solely,  unauthorized 57 

Voluntary  enlistment  in  Regular  Army  and  National  Guard  after  draft  . . .  116 

Women  may  not  enlist  in  Ordnance  Department 82 

Envelopes: 

Franking  privilege  for  applications  for  family  allowances  and  insurance. . .  99 

Purchase  of,  for  headquarters  of  military  departments 12 

Equipment: 

Contracts  not  governed  by  eight  hour  law 124 

Issue.     See  names  of  organizations. 

Loss  of  officer's  horse  equipment 127 

Errors.     See  Accused;  Courts-martial. 

Evidence: 

Additional — 

Revision  of  record  invalidated  by  introduction  of 108 

Comment  upon,  in  open  court  by  member 94 

Improper  questioning  inadmissible 69 

Use  of  depositions  in  desertion  cases  in  time  of  war  unauthorized 52 

Witnesses.     See  Witnesses. 

Examinations.    /See  Accused ;  Boards;  Survey. 

Exchange.    See  Post  exchange. 

Exemption  From  Military  Service.    See  Draft. 

Feed: 

Rations  savings  may  be  expended  for  cow 40 

Fees: 

For  taking  depositions 79 

Felonies.    See  Specific  name  of  offense. 


INDEX.  143 

Field  Artillery:  Page. 

Cavalry  regiments  may  retain  noncommissioned  personnel 88 

Cavalry  regiments  organized  provisionally  as 88,  98 

Field  Clerks: 
Army — 

Enlistment  in  National  Guard 16 

Entitled  to  war-risk  insurance ]06 

Heat,  light,  and  quarters  for 103 

Not  civilian  employees 42 

Not  entitled  to  increase  in  compensation  of  civilian  employees 42 

Right  to  draw  pension  while  serving  as 13 

Service  which  may  be  counted  for  allowances 45,  78 

Uniforms 127 

Heat  and  light  allowance  for 17 

Hunting  privilege  not  a  right ' 31 

Purchase  of  subsistence  supplies  from  Quartermaster's  Department 31 

Quartermaster  Corps — 

Enlistment  in  National  Guard 16 

Entitled  to  war-risk  insurance 106 

Member  of  Officers'  Reserve  Corps  ordered  to  active  duty 113 

Not  civilian  employees 42 

Not  entitled  to  increase  in  compensation  of  civilian  employees 42 

Uniforms 127 

Vacancy  in  field  clerkship  filled  by  temporary  appointment 113 

Final  Statements: 

Date  of,  when  sentenced  for  fraudulent  enlistment 39 

Flying.    See  Aviators. 

Food.    ^See  Feed;  Rations;  Subsistence. 

Foreign  Armies: 

Enlistments  in  United  States  for 126 

Foreign  Service.     See  Pay  and  allowances. 
Foreigners.    See  Aliens;  Foreign  armies. 
Forfeiture  op  Pay.     See  Pay  and  allowances. 
France: 

Examination  and  settlement  of  accounts  in 126 

Franking  Privilege.    See  Envelopes. 
Fuel.    See  Heat  and  light;  Quarters. 
Funds: 

See  also  Appropriations. 
Company — 

Distribution  of,  of  disbanded  organization 101 

Distribution  upon  reorganization 101 

Investment  in  liberty  bonds 57 

Furlough: 

Absence  after  notice  of  revocation  of  furlough  is  without  leave 6 

Effect  of  unauthorized 73 

Garbage: 

Money  received  from  sale  of 104 

German  Red  Cross.     See  Red  Croas,  German. 
Germany: 

War  declared  on  April  6,  1917,  by  United  States  on 37 

Gettysburg  National  Park: 

Regulations  respecting  vehicles  suspected  of  carrying  liquor 123 


144  INDEX. 

Grade.     See  Rank. 

Guards:  Page. 

Civilian  labor  for  police  duty  at  base  hospitals 77 

Extra-duty  pay  for  Philippine  Scouts  at  Corregidor 123 

Gunners: 

Additional  pay  for  enlisted  men  of  National  Guard  qualified  as 23 

Status  after  transfer  from  Coast  Artillery  to  Field  Artillery 86 

Heat  and  Light: 
See  also  Quarters. 

Buildings  of  Knights  of  Columbus 132 

Hostess  houses  of  Young  Women's  Christian  Association 77 

Young  Men's  Christian  Association  buildings 77 

Home  Guards: 

Members  as  individuals  subject  to  draft 59 

Not  subject  to  draft  as  members  of  National  Guard 59 

Right  to  wear  uniform 68 

Status  of ^ 59 

Horses: 

See  also  Mounts. 

Unauthorized  contracts  by  National  Guard  officers  for 117 

Hospitals: 

See  also  Insane  persons;  Medical  treatment. 

Commutation  of  rations  for  nurses  on  duty  in  France 118 

Failure  to  join  organization  after  discharge  from 122 

Pay  of  soldier  while  confined  in 119 

Police  duty  by  enlisted  men,  not  civilians 77 

Power  of  commanding  officer  to  convene  courts-martial 99 

Treatment  of  insane  soldiers  in  private 32 

Hostess  Houses: 

Heat  and  light  for 77 

Houses.     See  Hostess  houses;  Knights  of  Columbus;  Quarters;  Young  Men's 
Christian  Association. 

Hunting  Privilege: 

Field  clerks  not  entitled  to 31 

Illness: 

See  also  Hospitals;  Line  of  duty:  Medical  treatment. 

Enlisted  reservist,  fatally  ill  at  time  of  call  to  service 100 

Imprisonment.     See  Confinement. 

Income  Tax.     See  Taxes. 

Induction.     See  Draft. 

Inoculation: 

Compulsory,  legal  in  the  Army 1 29 

Insane  Persons: 

Procedure  for  payment  due  insane  soldiers 123 

Treatment  of  insane  soldiers  in  private  institutions 32 

Insignia  of  Merit: 

Distinguished  service  medals.     See  Distinguished  service  medals. 
Ribbons.     See  Ribbons. 

Insurance: 
War  risk — 

Persons  entitled  to 106 

Interpreters: 

Corps  included  in  headcpiarters  organization 115 

Corps  ^ot  organized  as  special  and  technical  troops 115 


INDEX.  145 

Intoxicants:  page. 

Enforcement  of  regulations  concerning 58- 

Interi)retation  of  President's  regulations 58 

Interpretation  of  the  term  "military  camps" 47 

Punishment  for  violation  of  liquor  regulations 95 

Regulations  apply  to  camps  in  Porto  Rico 57 

Regulations  not  applicable  to.  permanent  Army  posts 82 

Revocation  of  licenses  for  violation  of  Federal  regulations 5& 

Seizure  within  prohibited  z;one8 57 

Vehicles  suspected  of  carrying  liquor  into  Gettysburg  National  Park 12$ 

Zones  of  prohibition  for  sale  of 130 

Japan : 

Subjects  may  not  enlist  in  Medical  Enlisted  Reserve  Corps 82 

Judge  Advocates: 

Field  officer  with  punitive  expedition  on  duty  with  organization (I 

Junior  Military  Aviator.     See  Aviatqrs, 

Jurisdiction.     See  Civil  authorities;  Courts-martial. 

Knights  op  Columbus: 

Heat  and  light  for  buildings  of 132 

Land.     See  Leases. 

Larceny: 

Finder  of  Government  property  who  appropriates  for  own  use  guilty  of 6 

Laundries: 

Post  exchanges  as  agents  for  private 82. 

Leases: 

Option  for  renewal  of  leases  of  cantonment  sites  from  year  to  year 122" 

Payment  of  rent  by  Government 27 

Payment  of  rent  in  advance  for  lease  of  real  estate 34 

Revocation  of 7- 

Liabilities.    See  Claims. 

Liberty  Bonds: 

Allotment  of  soldiers'  pay  for  purchase  of 29 

Investment  of  company  funds  in 57 

Licenses: 

Revocation  of,  for  violation  of  Federal  regulations 58- 

Lighthouse  Service: 

War  risk  insurance  for  personnel  of 106 

Limits  of  Punishment.     See  Sentences. 

Line  of  Duty: 

Death  of  oflficer  while  engaged  in  proper  recreation  in 7 

Death  of  sentry  at  post  on  railway  bridge 83 

Injuries  not  resulting  from  willful  neglect  or  immoral  conduct 8^ 

Liquors.    See  Intoxicants. 

Local  Draft  Boards.     See  Boards. 

Longevity  Pay.     See  Pay  and  allowances. 

Loss  op  Grade.    See  Rank. 

Lumber: 

Signal  Corps  regiments  to  assist  in  cutting  spruce 13  0- 

Transfer  of  surplus  to  Allies 125 

Mail: 

Censorship  in  Canal  Zone 88 

Marine  Corps: 

Continuation  of  enlistments  during  emergency  not  applicable  to 131 

Eligibility  of  member  for  detail  in  Signal  Corps 8^ 

151738—20 10 


146  IITDEX. 

Marksmen:  Page. 

Machine-gun  battalion,  pay  after  transfer 86 

Mechanics  : 

Supply  companies  may  include 125 

Medical  Corps  : 

Qualifications  for  appointment  and  promotion  in 85, 102 

Medical  Department: 

Detail  of  enlisted  men  as  mess  sergeants 117 

Medical  Enlisted  Reserve  Corps: 

Eligibility  for  enlistment  in 82 

Medical  Reserve  Corps: 

Longevity  pay  of  members  of 28 

Status  of  officer  continuing  in  service  after  termination  of  commission 59 

Medical  Treatment: 

Civilian  employees 42 

Compulsory  inoculation  and  vaccination  in  the  Army 129 

Contractor's  employees  on  cantonment  construction 48 

Insane  soldiers  treated  in  private  institutions 32 

Members  of  National  Guard  prior  to  muster  into  Federal  service 48 

Refusal  by  enlisted  man  to  submit  to  operation 54 

Mess.    See  Rations;  Subsistence. 

Mess  Sergeants.    ^iSee  Sergeants.  -  a.;.;  io  v.,,::  . 

Mileage:  ;>.,.  •/.,>! 

See  also  Traveling  expenses.  -inomi  kk  n-igr 

Members  of  Officers'  Reserve  Corps  entitled  to 42 

Officers  of  Aviation  section.  Signal  Officers'  Reserve  Corps 29 

Officers  on  camp  inspection  duty 1 24 

Reserve  officer  inspecting  National  Guard  records 87 

Military  Academy.     See  United  States  Military  Academy. 

Military  Forces.     See  Army, 

Military  Instruction.     See  Reserve  Officers'  Training  Corps. 

Military  Police.     See  Guards. 

Military  Service.     See  Army;    Draft;    Enlistment;    Enlisted  men;    Officers; 
names  of  organizations  and  branches  of  the  Army. 

Military  Storekeeper.     See  Storekeeper. 

Militia  : 

See  also  National  Guard. 

Status  of  members  of  Organized  Militia  in  National  Guard 18 

Militia  Bureau: 

Status  unchanged  by  draft  of  National  Guard 122 

Minors: 

Discharge  of  drafted 104 

Misconduct.     ^See  Line  of  duty;  specific  name  of  offense. 

Motor  Vehicles:  .'.v;-i*.iy  :  i  j  -^»  ^ 

cr  ^  ,,V.  V^*f   vrfV'i 

Traffic  regulation  in  Gettysburg  National  Park 123 

War  revenue  tax  on 105 

Mounts: 

Lost  while  in  military  service 26,  127 

Maintenance  at  remount  depot  allowed  to  officer  ordered  to  foreign  service.         61 

Reserve  officers 116, 127 

Sale  by  officer  to  Government '. 118 

Transportation  of  officer's 87 


INDEX.  147 

Mules  :  rage. 

Unauthorized  contracts  by  National  Guard  oflBcers  for 711 

Munitions: 

Manufacture  ordered  by  Government  and  transferred  to  Allies 113 

National  Anthem: 

Misuse  of 84 

National  Guard: 

Acceptance  of  commission  in  Officers'  Reserve  Corps  vacates  (commission 

in 101 

Aid  to  dependent  families  of  enlisted  men  of 11 

Arrest  of  deserters  from  National  Guard  in  Federal  service 5 

Clothing  allowance 18 

Component  of  Army  organized  by  direction  of  President 5S 

Continuation  of  active  service  after  expiration  of  enlistment 19 

Date  of  final  statement  of  enlisted  man  sentenced  for  fraudulent  enlistment .  39 
Discharge — 

From  National  Guard  Reserve  to  enlist  in 8 

Procedure  for  discharge  of  officers 99 

District  of  Columbia — 

Service  in,  for  determination  of  relative  rank 126 

Draft  of  officers 84 

Eligibility  for  appointment  as  property  and  disbursing  officer 38 

Eligibility  of  officers  for  commissions  in  Officers'  Reserve  Corps 119 

Enlistment  of  field  clerks  in 16 

Enlistments  continued  in  force  during  war 38 

Expenses  incurred  after  draft,  proper  charge  against  United  States 58 

Grade  of  wagoner  not  authorized  for  separate  companies  of  Engineers 58 

Jurisdiction  over  offenses  committed  prior  to  draft  into  Federal  service. . .  119 

Medical  treatment  for  members  prior  to  muster  into  Federal  service 48 

Members  of  Officers'  Reserve  Corps  ordered  to  duty  with 98 

Members  of  Organized  Milita  in 18 

Naturalization  of  alien  members  of 128 

Officer  elected  to  advanced  grade  appointed  and  not  promoted 120 

Pay.     See  Pay  and  allowances. 

Punishment  for  failure  of  members  to  respond  to  call 19 

Qualifications  for  appointment  as  second  lieutenant  in  Regular  Army.  ...  60 

Qualifications  for  enlistment  in 113 

Retired  enlisted  men  commissioned  in,  federalized 117 

Retirement  of  officer  of 104 

Service  in  determining  rank  in  United  States  Army 62 

State  staff  corps  not  members  of 58, 112 

Status  after  call  into  Federal  service 131 

Status  of  Militia  Bureau  after  draft  of 122 

Veteran  Corps  of  Artillery  not  part  of 76 

National  Guard  Reserve: 

Appointment  as  second  lieutenant  after  furlough  to 60 

Discharge  to  permit  enlistment  in  National  Guard 8 

Naturalization.     See  Aliens;  Citizenship. 

Naval  Militia: 

Veteran  Corps  of  Artillery  not  part  of 76 

Navy: 

Service  for  retirement  includes  service  in 88 

Subsistence  for  officers  in  charge  of  naval  gun  crews  on  transports 61 


148  INDEX. 

Newspapers:  ra?e. 

Contracts  for  advertising  in ]20 

Noncommissioned  officers: 

Cavalry  regiments  organized  as  Field  Artillery  may  retain 88 

Jurisdiction  of  summary  court  to  reduce 46 

Lance  corporal  is  not 53 

Rank  of  Regular  Army 88 

Reenlistment  of  corporal  of  National  Guard  after  refusal  to  take  oath 39 

Status  of  corporal  of  National  Guard  upon  reenlistment 39 

Nurses: 

See  also  Army  Nurse  Corps. 

Contract  nurses  not  entitled  to  war-risk  insurance 107 

War-risk  insurance  for  male  nurses  of  Medical  Department 106 

Oath  of  Enlistment.    See  Enlistment. 
Oaths: 

Persons  required  to  take 85 

Right  of  assistant  to  department  adjutant  to  administer 119 

Office  : 

See  also  Command;  Officers;  Rank;  specific  name  of  detail  or  occupation. 

Acceptance  of  civil  office  by. officer  of  National  Army 84 

Officers: 

Appointment — 

Age  requirements  for  enlisted  men  appointed  second  lieutenants 116 

Commissions  in  more  than  one  component  of  the  Army 92, 124 

Continuation  in  service  after  termination  of  appointment 59 

Effect  of  appointment  to  higher  grade  in  temporary  forces 102 

Eligibility  for  appointment  after  one  year  in  National  Army 60 

General  officers  for  regiments  of  enlisted  reservists 113 

In  Medical  and  Dental  Corps 85, 102 

In  Porto  Rico  Regiment  of  Infantry 101 

National  Guard  officer  elected  to  advanced  grade 120 

New  commissions  after  consolidation  of  departments  with  Quarter- 
master Corps 114 

Persons  not  citizens  of  the  United  States 129 

Philippine  Scout  officers  as  second  lieutenants,  Regular  Army 114 

Qualifications  for  second  lieutenant,  Regular  Army 60 

Regular  Army  officer  in  National  Army .- 105 

Reporting  at  designated  place  under  orders  not 59 

Time  of  appointing  officers  for  service  in  National  Army 116 

Civil  office.     See  Office. 

Command.     /See  Command;  Rank. 

De  facto.     See  Pay  and  allowances. 

Demotion.    See  Boards;  Rank. 

Disbursing.     See  Disbursing  officers. 

Medical.     See  Medical  Corps;  Veterinary  Corps. 

Mounts.     See  Mounts. 

National  Guard.     See  National  Guard. 

Navy.     See  Navy. 

Pay.     See  Pay  and  allowances. 

Philippine  Scouts.     See  Phillippine  Scouts. 

Precedence.     See  Rank. 

Promotion — 

Eligibility  when  holding  provisional  commission 123 

In  Medical  and  Dental  Corps 85, 102 


INDEX.  149 

Officers— Continued . 

Promotion — Continued.  Page. 

In  Porto  Rico  Regiment  of  Infantry 101 

National  Guard  officer  elected  to  advance  grade 120 

To  fill  vacancies  in  Regular  Army 88, 102, 105, 1 25 

Provisional.    See  Officers — Appointment. 

Rank.    See  Rank. 

Retirement.    See  Retirement. 

Seniority.    See  Rank. 

Temporary.    See  Officers — ^Appointment. 

Transfer  to  another  component 102 

Travel.    See  Mileage;  Traveling  expenses. 
Uniform.     See  Uniform. 
Officers'  Reserve  Corps: 

Acceptance  of  commission  by  continuing  in  active  service 59 

Appointment — 

National  Guard  officers 119 

Regular  Army  officers 119 

Women  physicians 124 

Disbursing  officers  required  to  give  bond 29 

Effect  of  acceptance  of  commission  in,  by  drafted  National  Guardsmen 101 

Eligibility  of  militaiy  storekeeper  for  higher  rank  in 117 

Field  clerk,  Quartermaster  Corps,  ordered  to  active  duty. 113 

Higher  rank  for  second  lieutenants,  Quartermaster  Corps,  in 117 

Instructors  at  schools  and  colleges 125 

Mounts  for  members  of * 116 

Officer  not  called  into  active  duty  may  not  wear  uniform 68 

Officer  not  to  be  assigned  as  assistant  to  junior  in  Regular  Army 22 

Signal  Corps  Section  comprised  of  two  divisions 20 

Temporary  duty  with  Regular  Army 98 

Officers'  Training  Camps.     See  Camps. 
Ohio  River  Dam: 

Application  of  eight-hour  law  to  construction  of 124 

Operations.     See  Medical  treatment. 

Order  Appointing  Court-martial.     See  Courts-martial. 

Ordnance  Department: 

Women  may  not  enlist  in 82 

Overtime: 

See  also  Eight-hour  law. 

Extra  pay  for  employees  of  Medical  Supply  Depot 118 

Extra  pay  for  mechanics^  employed  by  Government 55 

Panama  Canal  Zone.     See  Canal  Zone. 
Pay: 

Civilian  employees — 

Extra  pay  for  overtime  work  for  employees  of  medical  supply  depot. . .       118 

Increase  in  compensation 32, 41,  50 

While  attending  reser\^e  officers'  training  camp 42 

Extra  pay  for  overtime  work  by  mechanics  employed  by  Government 55 

Pay  and  Allowances: 
Allotments — 

Effect  of  sentence  of  forfeiture  of  pay  upon 100 

For  dependent  parents 86 

Purchase  of  liberty  bonds 29 

Baggage.    See  Baggage.  » 


150  INDEX. 

Pay  and  Allowances — Continued.  Page. 

Balloon  duty  entitles  officer  to  extra 5 

Civilian  employees.     See  Pay. 

Commutation  of  heat  and  light,  and  quarters.    See  Quarters. 

Commutation  of  rations.    See  Rations. 

Continuous  service  pay — ■ 

Drafted  National  Guardsmen 60 

Reenlistment  applied  for  within  three  months 30 

Corporal  of  National  Guard  upon  reenlistment  after  refusal  to  take  oath ...  39 

De  facto  officers 38,  84,  86, 129 

Drafted  men  exempted  after  reporting  at  camp 60 

Effect  of  failure  to  report  to  organization  after  discharge  from  hospital 122 

Enlisted  men  of  National  Guard  at  training  camps 61 

Enlisted  men  of  the  Philippine  Scouts 103 

Expert  rifleman's  pay  where  Cavalry  reorganized  as  Field  Artillery 131 

Extra  duty  pay — 

Corregidor  prison  guards 123 

Right  of  enlisted  men  to " 47, 115 

Field  clerks  not  entitled  to  increase  in  compensation  of  civilian  employees .  42 

Flying  cadets 103 

Foreign  service  pay — 

Computation  of  20  per  cent  increase 35 

Forfeiture  of  right  to  reservist's  pay  by  failure  to  report  address 121 

Gunner  of  Coast  Artillery  transferred  to  Field  Artillery 86 

Insane  soldiers 123 

Longevity  pay — 

Computing  service  for 93 

National  Guardsmen  when  drafted  into  Federal  service 60 

Officers  of  Medical  Reserve  Corps  on  active  duty 28 

Prior  service  in  National  Guard 103 

Reserve  Nurse  Corps  for  service  in  Army  and  Navy  Nurse  Corps 103 

Retired  officers  entitled  to  increases  of 43 

Service  in  training  camp 86 

Service  of  officer  in  Medical  Reserve  Corps  in  determining 28 

Marksman's  pay,  machine  gun  battalion 86 

Members  of  National  Guard  prior  to  muster  into  Federal  service 48 

Men  in  training  camps 61 

Mess  and  supply  sergeants  in  supply  companies 125 

Mileage.  See  Mileage. 
Mounts.  See  Mounts. 
National  Guard — 

Additional  pay  of  enlisted  men  as  gunners 23 

Enlisted  men  who  refuse  to  take  Federal  oath 34 

Increased  pay  for  outdoor  rifle  practice  under  orders 51 

Retired  enlisted  man  commissioned  in  federalized  National  Guard 117 

Retired  officers  and  enlisted  men  commissioned  in  National  Guard 23 

Prisoners  of  war 22 

Quarters.     See  Quarters. 
Rations.     See  Rations. 

Reenlistment  pay  not  a  bounty 61 

Retired  officers  and  enlisted  men  ordered  to  active  duty 24,  49, 122 

Retired  officers  transferred  to  active  list 24 

Second  enlistment  pay  after  service  in  Philippine  Scouts 131 

Service  necessary  for  field  clerk  to  receive  allowances 45,  78 


INDEX.  151 

I*  A.Y  AND  Allowances — Continued.  Page. 

Sharpshooter's  pay  after  tranter  to  aerial  squadron 87 

Soldier  injured  while  confined  in  hospital 119 

Status  of  naval  officer  for  purpose  of  computing 75 

Stoppage — 

Claim  for  alimony 128 

Damages  to  private  property 1 28 

Effect  on  allotments 100 

Enlisted  man  of  Regular  Army  Reserve  after  court-martial  sentence. .         13 

Private  claims  against  enlisted  men 86 

Travel.    See  Mileage;  Traveling  expenses. 

Penalties.     See  Confinement;  Discharge;  Sentences;  specific  name  of  offen8<\ 

Penalty  Envelopes.     See  Envelopes. 

Penitentiaries.     See  Confinement. 

Pension  Bureau: 

Interpretation  of  line  of  duty 7 

Pensions: 

Right  of  field  clerk  to 13 

Widow  of  officer  killed  while  engaged  in  proper  recreation  entitled  to 7 

Philippine  Islands: 

Citizens  may  not  enlist  in  Medical  Enlisted  Reserve  Corps 82 

Issue  of  rifles  and  ammunition  to  rifle  clubs  in 8 

Rental  of  building  in  Manila  for  soldiers  on  leave 121 

Philippine  Scouts: 

Appointment  as  second  lieutenants,  Regular  Army 114 

Enlistment  in  Regular  Army  after  service  in 131 

Extra  duty  pay  of  Corregidor  prison  guards 123 

Pay  of  enlisted  men  of 103 

Physicians.    See  Medical  Corps. 

Police.     See  Civil  authorities;  Guards. 

Porto  Rico: 

Regulations  prohibiting  intoxicants  applicable  to  camps  in 57 

Selective  draft  act  applicable  to 115 

Porto  Rico  Regiment  of  Infantry: 

Appointments  and  promotions  in 101 

Component  of  Regular  Army 101 

Post  Exchanges: 

Agents  for  private  laundries 82 

Liability  to  war  revenue  tax 101 

Post  Office  Department: 

Postal  agents  sent  to  France  not  entitled  to  war  risk  insurance 106 

Posts.    See  Camps. 

Precedence.     See  Command;  Rank. 

President  of  the  United  States: 

Additional  distinguished  service  medals  provided  for  by 57 

Application  of  proclamation  of  April  6,  1917,  to  enlisted  German 130 

Confirmation  of  dismissal  of  officer  in  tactical  division 80 

Power  to  employ  Army  to  suppress  violence %  53 

Power  to  prevent  flying  of  aircraft  during  war 68 

Printing  and  Binding: 

Procurement  from  commercial  concerns  in  time  of  war 20, 131 

Prisoners: 

Reward  for  apprehension  of  escaped  garrison 129 


152  INDEX. 

Prison ERvS  of  War:  Page. 

Jurisdiction  of  courts-martial  over ^ 100 

Pay  of  officers 22 

Right  to  food  supplies  and  furniture  taken  from  captured  vessel 20 

Right  to  make  and  sell  toys  for  benefit  of  German  Red  Cross 21 

Private  Property: 
Losses.     See  Claims. 
Mounts  of  officers.     See  Mounts. 
Privates.     See  Enlisted  men;  Enlisted  Reserv^e  Corps;  Regular  Army  Reserve. 
Prohibition,     -i^ee  Intoxicants;  Vice. 
Promotions.     See  Officers — Promotion. 
Property.     >See  Accounts;  Captured  property;  Claims;  Public  property;  Real 

estate. 
Public  Health  Service: 

Right  to  purchase  uniform  clothing  and  supplies 118 

War-risk  insurance  for  officers  of 106 

Public  Property: 

Application  of  eight-hour  law  to  contracts  for  supplies   bought  in  open 

market 46,  56 

Damages.     See  Claims. 

Emergency  purchases  of  military  supplies 79 

Funds.     See  Funds. 

Import  duty  on  Army  supplies 45 

Leases.     See  Leases. 

Right  of  prisoners  of  war  to  property  taken  from  captured  vessel 20 

Sales — 

Disposition  of  money  received  from  sale  of  garbage 104 

Illegal  without  inspection  and  survey 61 

Old  materials 118 

Stores  to  crews  of  Army  transports 125 

Subsistence  supplies  to  Army  field  clerk 31 

Uniform  clothing  and  supplies  to  employees  of  Public  Health  Service .       118 

Unlawful  purchase  of  Government  property 6 

Transfer  of  surplus  spruce  lumber  to  allied  Governments 125 

Punishment.     See  Confinement;  Discharge;  Sentences. 
Purchases.     See  Contracts;  Mounts;  Public  property. 
Quartermaster  Corps: 

Field  clerks.     See  Field  clerks. 

Determination  of  lineal  rank  in 87 

New  commissions  for  officers  of  former  departments  consolidated  with 114 

Storekeeper  and  second  lieutenants,  higher  grade  in  Reserve  Corps 117 

Quarters  : 

Commutation  of  heat  and  light — 

Army  field  clerks 103 

Members  of  Officers'  Reserve  Corps  and  National  Guard 49 

Quarters  occupied  by  family  of  officer  on  field  duty 86 

Subject  to  income  tax 82 

Commutation  of  quarters — 

Army  field  clerk .* 103 

Army  Nurse  Corps 82, 128 

Officers  on  duty  in  the  field 50 

Subject  to  income  tax 82 

Heat  and  light  allowance — 

Enlisted  men  assigned  to  public  quarters 18 

Field  clerks  not  entitled  to 17 


INDEX.  168 

Railroadb:  Page. 

Repair  of  equipment  damaged  on  Government  tracks 126 

Transportation  of  troops  over  land-grant 119 

Railway  Engineers: 

Organization  formed  out  of  Enlisted  Reserve  Corj)s 112, 113 

Rank: 

Captain  assigned  to  active  duty  as  junior  military  aviator 68 

Enlisted  man  on  retirement 104 

Grade  of  first-class  private ,  Engineer  Corps,  for  reservist  called  to  active  duty.  9 

Grade  of  wagoner  of  Cavalry  for  reservist  called  to  active  duty 1© 

Lineal,  how  determined 87 

Noncommissioned  officers — 

Reenlistment  of  corporal  of  National  Guard  when  no  vacancy  in  grade .        39 

Regular  Army 88 

Summary  court  has  power  to  reduce 46 

OflScers  transferred  to  another  arm  of  service 39 

Relative  rank  of  officers  in  Regular  Army  and  officers  of  other  forces 119 

Reserve  officer  not  to  be  assigned  as  assistant  to  junior  in  Regular  Army. .        22 
Service  in  National  Guard  for  determination  of  relative 62, 126 

Ration  Savings: 

Expenditure  for  feed  for  cow 40 

Rations: 

Nurses  on  duty  in  the  field , 128 

Real  Estate: 

Leases.     See  Leases. 

Sale  of  Government  buildings  without  inspection  illegal 61 

Recruit  Training  Units: 

Raised  by  draft  exclusively 114 

Recruiting.     See  Draft;  Enlistment. 

Red  Cross: 

American  National — 

Military  jurisdiction  over,  while  in  France 98 

German — 

Sale  of  toys  made  by  prisoners  of  war  for 21 

Reenlistment.     See  Enlistment;  Pay  and  allowances. 

Refusal  of  Surgical  Treatment.     See  Medical  treatment. 

Regular  Army.     See   Army;  Enlisted    men;  Enlistment;  Noncommissioned 
officers;  Oflicers:  Pay  and  allowances. 

Regular  Army  Reserve: 

Enlistments  continued  in  force  during  war "8 

Grade  of  first-class  private,  Engineer  Corps,  when  called  to  active  duty 9 

Grade  of  wagoner  of  Cavalry  for  enlisted  man  called  to  duty  after  furlough 

to , ^ 10 

Pay.     See  Pay  and  allowances. 

Remount  Depots: 

Courts-martial  jurisdiction  over  auxiliary 129 

Rental: 

Building  for  use  of  Army  Medical  School 120 

Building  in  Manila  to  house  soldiers  on  leave 121 

Payment  by  Government  for  leased  property 27 

Payment  in  advance  for  lease  of  real  estate 34 

Repatriation.     See  Citzenship. 

Reporters: 

Pay  when  called  for  service  on  efficiency  boards 123 


154  INDEX. 

Requisition:  i-a^ 

Munitions  for  Allies  required  of  manufacturers 1 1  :*> 

Reserve  Nurse  Corps: 

Longevity  pay  computed  on  basis  of  service  in  Army  and  Navy  Nurse 
Corps 103 

Reserve  Officers'  Training  Camps.     See  Camps. 

Reserve  Officers'  Training  Corps: 

Commutation  of  subsistence 41 

Students  entitled  to  advance  standing  in  military  science vS3 

Reservists.     See  Enlisted  Reserve  Corps;  National  Guard  Reserve;  Oflirers' 
Reserve  Corps;  Regular  Army  Reserve. 

Resignation: 

Civilian  employees  without  due  notice 78 

Retirement: 

Computing  war  service  for 88 

Drafted  National  Guard  officer 104 

Increases  of  longevity  pay  for  ac^tive  duty 43 

Pay  of  officers  and  enlisted  men  assigned  to  active  duty 24, 49,  122 

Pay  of  retired  officers  and  enlisted  men  commissioned  in  National  Guard .        23 

Pay  of  retired  officers  on  transfer  to  active  list 24 

Provisional  second  lieutenant 132 

Rank  of  enlisted  man  on 104 

Retired  enlisted  man  commissioned  in  federalized  National  Guard 117 

Service  which  may  be  counted  by  enlisted  men .* . .       104 

War  risk  insurance  for  retired  officers  and  men 106 

Revenue.     See  Taxes. 

Reviewing  Authority: 

Disapproval  of  findings 108 

Not  required  to  write  action  in  own  hand 99 

Procedure  where  sentence  is  improper  in  form 109 

Reward: 

.  Apprehension  of  escaped  garrison  prisoner 129 

Charge  against  deserter  not  authorized 80 

Delivery  at  place  other  than  nearest  military  post 99 

Payable  for  apprehension  of  deserter  although  disqualified  for  service 55 

Place  of  delivery  of  deserter 55 

Ribbons: 

Unauthorized  wearing  of  service 128 

Rifle  Clubs: 

Issue  of  rifles  and  ammunition  to  clubs  in  Philippine  Islands 8 

Russian  Railway  Service  Corps: 

Not  entitled  to  war  risk  insurance 106 

Salaries.    See  Pay;  Pay  and  allowances. 

Secretary  of  War: 

Delegation  of  authority  to  act  on  reports  of  surveys 15 

Selective  Draft  Act: 

Constitutionality 70,  71 

Finality  of  decisions  of  local  boards 71 

Seniority.    See  Rank. 

Sentences: 

Confinement.  -  See  Confinement. 

Construction  of  forty -fifth  article  of  war 45 

Construction  of  forty-eighth  article  of  war 54,  98 

Desertion  committed  in  time  of  peace 110 


INDEX.  165 

Sentences — Continued . 

Discharge.     See  Discharge.  Page. 

For  violation  of  liquor  regulations 95 

Forfeiture  of  pay  without  term  of  confinement 52 

Legality  of  sentence  by  summary  court  reducing  noncommissioned  officer.        46 
Limitation  of,  by  summary  court 78 

Sergeants: 
Mess — 

Band  sergeants  of  Coast  Artillery  Corps  not  detailed  as 11 

Detail  of  enlisted  men 117 

For  Engineer  band *. . .       ]  21 

For  supply  companies ]25 

Supply— 

For  supply  companies 125 

Organizations  other  than  Engineers 78 

Service: 

See  also  Accused;  Army;  Draft;  Enlisted  men;  Enlistment;  Officers;  Pay  and 

allowances;  Retirement;  name  of  an  organization. 
Commutation  of  quarters  and  subsistence  for  Army  Nurse  Corps  in  field. . .         82 

Computing  war  service  for  retirement 88 

Continuation  in  National  Guard  after  expiration  of  enlistment 19 

Field  officer  as  judge  advocate  with  punitive  expedition 6 

Necessary  service  for  Army  field  clerk  to  qualify  for  allowances 45 

Noncombatant  service  defined 56 

Sharpshooters: 

Pay  after  transfer  to  aero  squadron 87 

Sickness.     See  Deceased  persons;  Disability;  Hospitals;  Illness;  Line  of  duty; 
Medical  treatment. 

Signal  Corps: 

Aviators.     See  Aviators. 

Civilian  field  clerks  not  entitled  to  war  risk  insurance 106 

Eligibility  of  marine  for  detail  in  aviation  section 83 

Enlistment  for  musical  purposes  only  not  authorized 57 

Organization  of  divisions  of 20 

Regiments  to  assist  in  cutting  spruce  for  airplanes 130 

Signal  Officers'  Reserve  Corps: 

Aviation  section,  travel  orders  issued  by  Chief  Signal  Officer 29 

Eligibility  of  members  for  examining  boards 85 

Spain  : 

Treaty  with,  exempting  from  compulsory  military  service 97 

Special  and  Technical  Troops: 

In  addition  to  drafted  forces 114 

Staff  Duty: 

Draft  of  State  staff  corps 58 

Personal  aids  for  major  and  brigadier  generals 115 

State  administrative  staff  officers  not  part  of  National  Guard 58, 112 

State  Authorities.     See  Civil  authorities. 

Statute  op  Limitations: 

Trials  for  desertion 22,  79 

Stoppage  of  Pay.    See  Pay  and  allowances. 

Storekeeper: 

Eligibility  of  military  storekeeper  for  higher  rank  in  Reserve  Corps 117 

Stores.     See  Public  property. 


156  INDEX. 

Subsistence:  rage. 

Army  Nurse  Corps 82 

Commutation  of,  for  members  of  Reserve  Officers'  Training  Corps 41 

Officers  on  Army  transports 61 

Subsistence  Supplies.    See  Public  property. 

Supplies.    See  Public  property. 

Surgeons,    ^ee  Contract  surgeons;  Medical  Corps. 

Surrender  of  Soldiers.    See  Civil  authorities;  Desertion -Reward. 

Surveys: 

Delegation  of  authority  by  Secretary  of  War  to  act  on  reports  of 15 

Sale  of  public  property  illegal  without 61 

Tariff: 

Army  supplies  not  exempt  from 45 

Taxes: 

Commutation  of  quarters,  heat,  and  light  subject  to  income 82 

Liability  of  post  exchange  to  war  revenue 101 

Motor  vehicles  subject  to  war  revenue 105 

Telegrams: 

Payment  for,  when  sent  by  Civil  Service  for  Ordnance  Dept 122 

Testimony.     6'ee  Accused;  Evidence;  Witnesses. 

Training  Camps.     See  Camps. 

Transportation  : 

Troops  on  west  side  of  Canal  Zone 116 

Troops  over  land  grant  railroads 119 

Transports: 

Courts-martial  jurisdiction  over  civilians  on  Army 110 

Sale  of  supplies  to  crews  of  Army 125 

Subsistence  of  officers  on 61 

Travel  Orders: 

Issued  to  Aviation  Section.  Signal  Officers'  Reserve  Corps 29 

Traveling  Expenses: 

Discharged  drafted  man 87 

Drafted  men  exempted  after  reporting  at  camp 60 

Enlisted  man  discharged  because  convicted  by  civil  court 43 

Enlisted  man  discharged  to  accept  commission 43 

Regular  Army  reservist  on  discharge 94 

Transfer  of  officer  for  his  convenience  does  not  entitle  to 10 

Trials.     iSee Accused ;  CiAil authorities;  Courts-martial;  Evidence;  Witnesses. 

Uniform  : 

Field  clerks 127 

Home  Guards 68 

Psychological  examiners  at  camps 54 

Reserve  officers  not  on  active  duty 68 

United  States  Military  Academy: 

Burial  expenses  of  cadets 116 

Cadets  not  entitled  to  war  risk  insurance 106 

United  States  Naval  Academy: 

Midshipmen  not  entitled  to  war  risk  insurance 106 

Yaccination  : 

Compulsory  legal  in  the  Army 129 

Yeteran  Corps  of  Artillery: 

Not  part  of  National  Guard  or  Naval  Militia 76 

Yeterinary  Corps: 

Age  qualifications  for  appointment  as  assistant  veterinarian 41 


INDEX.  157 

Vice:  Page. 

Expense  of  enforcing  regulations  for  suppression  of 77 

Regulations  applicable  to  Regular  Army  posts 82 

Suppression  of,  within  zones  of  prohibition 58 

Vocational  Education: 

At  Disciplinary  Barracks 117 

Wagoners: 

Cavalry,  called  to  active  duty  after  fiu*lough  to  reserve 10 

Grade  not  authorized  for  separate  companies  of  Engineers,  National  Guard .  58 

Witnesses: 

Attendance  of,  before  local  draft  boards 81 

Expenses  when  called  before  examining  boards 123 

Place  of  trial  determined  by  expense  of  securing 31 

Procedure  when  witnesses  are  absent  in  military  service 99 

Right  of  accused  to  testify  as 128 

Women: 

Eligibility  for  appointment  in  Officers'  Reserve  Corps,  medical  section 124 

Words  and  Phrases: 

Acting  Army  field  clerk 31 

Allowances 13 

Division 54 

Grade 22 

Military  camps 47 

Military  service 27 

More  or  less 25 

Officers 22 

Provisional 9 

Rank 22 

World  War: 

Declared  against  Germany  by  United  States  on  April  6,  1917 37 

Young  Men's  Christian  Association: 

Heating  and  lighting  fixtures  for  buildings  of 77 

Young  Women's  Christian  Association: 

Heat  and  light  for  hostess  houses 77 

Zones  of  Prohibition: 

Alien  enemies 130 

Sale  of  intoxicants  within 130 

Seizure  of  intoxicants  within 57 


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